The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-07-21

lions 1885 acres, and in the south't east
norton about $40 acres, a total OF 2o40
acres of cane lInd of V rying quality.
The northern part of 1875 acres Is al
most entirely worthless as cane land,
also $40 acres close 10 the foothills,
being about half Of the tract between
the road and the hills, also about $50
acres along the central portion Of the
Waikapu section, and SO acres more
or les along the shores of Maalaea Bay
including sKeaiia pond and adjacent
land, total of 1865 acres of poor land.
The mountain land contains approx
Imately 2730 acres above the line of
the foothills, and is practically of 40
value, except IA pasturage at certain
times Of the year.
The Hawaiian Commercial and Su-
gar Co. are to be al owed to- mature
and take off without let or hindrance
the cane now planted 10y Them on the
land which by this partition falls to-
the Waikapu Sugar co. and situated
as follows: A small area at the north
eastern corner, and also 2o-acre
patch near the central portion.
The defendants excepted 10 the
Commissioner report as follows:
And now comes the said O.. w.
Macfarlane on behalf of the defendant
and excerpts to the partition recon-
mended by the Commissioners in
the report herein filed on the
grounds that and in that such
partition of the common property
would not be either just or equI-
table, but would be unequal and un-
fair, inasmuch as it would fail to set
apart to the defendant a just, fair and
equal portion of the common property,
ami that the portion proposed to be
set apart to the defendant is not
equally advantageous for cane Gull
tiVatiOn by the defendant or for
renting to others for such Guilt
walton, and that it is vastly infe-
rior ia actual value to the pc ton
proposed to be set apart to the plain
tiff Wherefore the defendant asks
that the said report may be al ogether
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 to the Chirf
| Justice who rendered tie following
| decision:
"The report of the three commits
! sioners appointed to partition the
| land owned as tenants in common
between them in equal shares was
| fl led on the 5th December last. EX-
cepJiOn to it was taken by the reSpon-
dent. The report shows that the COM
missioners carefully considered the
whole matter, visited the estate to be
divided and arrived at conclusions that
seemed to them 20 be just and equit-
able to both ! arties. Both parties
presented evidence before me in the
shape of oral testimony and writ n
affidavits. Without reviewing the
report or the evidence submitted in
detail / am of opinion that the excep-
ton to the report is not sustained and
| 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 a motion to
confirm the same, and counsel for
complainant and respondent having
been heard, and the Court being of
| opinion that the exceI tions filed by
| respondent should be overruled and
the report confirmed: 1t is ordered,
a Judged and decreed that the said
report of tn commissioners appointed
herein TO make partition be and is
hereby confirmed, and that the fees Of
| said commissioners taxed at one hun
dred dollars each and expenses of all
| the commissioners amounting TO
| Sl54 25 be borne by the parties
equally; and that the parties make
cOnveyances to each in accordance
with said report"
And thereupon defendant filed its
notice of appeal as follows:
| And N w comes George w. Mac
| farlane on behalf of the defendant in
the above entitled suit, and appeals to
| the Supreme Court in BaucO from the
| decision and order of His Honor the
| Chief Justice and Chancellor herein
| filed January 4, 1894, wherein and
| whereby the report and findings 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 overTuled."
The exception to the Commissioners
| Report is based ID upon the evidence
before the Court, and also upon affida-
| Wits and evidence produced before the
| Chief Justice at the hearing and CID
upou points of law to the effect that
| the Commissioners have adopted in
| correct and false principles in making
the partition.
| The evidence presented before the
! Commissioners is not before us, and
we are of opinion that the matters set
| forth in the affidavits do not warrant
| the setting aside of the Commissioners
report, which is in the nature of a
verdict of a jury or n decision of a
Judge without jury, and should not
! he set aside unless the evidence clearly
I shows error in fact, and that the Com
! miS>iOners did not follow the evidence
/ produced before them. The affidavits
cannot be considered as newly dis
/ covered evidence in this case. The
fore the Commissioners. Further,
the STATE ments of the atlantis on part
of the defendant do not clearly show
upon what they base their facts and
Opinions and are not of weight suffi-
! Gent to- set aside the report.