The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-08-05
OPINION OF THE COURT, BY
JUDD. G.. J.

JUDD, G. J.
This case comes to us upon exceptions
from the Circuit Court, Fifth Circuit
where the case was heard by Circuit
Judge Hardy, jury waived. 1t is an
action of ejectment
The trial Court found the undisputed
facts that in January, 1869, some fifty
native Hawaiians bought the land of
''Wainiha" on the Island of Kauai On
the 10th of September, 1877, a written
constitution was signed by them. OF
| these persons one was Kumahakaua
| and another KilauanO, the father of the
| plaintiffs. This constitution" provided
| for a general manager Quna MUD, sec
| rotary and treasurer, and gave the care
and control of the land of the company
| Chui) to the general manager. 1t was
provided by Sec. of the constitution
that five acres should be set apart to
| each member of the company The
method adopted was that applications
| for lots were made in writing and, on
| approval as to location, given at a
stated meeting of the company held in
| pursuance Of the constitution twice a
year, the manager and secretary issued
to the applicant a certificate, setting
OFF to him by metes and bounds the
parcel of land applied for.
Kumahakaua made application for
parcel of land called uni" the one
now sued for, and by consent of the
manager took possession of it in 1878;
but as he had decided his interest in the
land of Wainiha to his son, KiIauanO
in 1875, it was awarded by certificate di-
rectly to Kilauano in 1881. This allot-
ment was ratified by the company at
the meeting of July, 1888. The plaintiffs
are the children OF this Kilauano, de-
ceased interstate. The defendant w. Ka-
leikini, also one of the tenants in COM
mon of this land, finding the tract in
question unoccupied-tha is, no one
actually living thereon-took possess |
sion of it in 1894 and refused to restore
it to plaintiffs. Previous to this, in 1890, !
the company passed a resolution that |
no member of the hui company could |
cultivate at will land already set apart |
for another member. He could only do |
this upon approval by the manager. |
No evidence of the defendants contra
dicted these facts. The Circuit Judge |
rendered judgment for plaintiffs for the
possession of this land, and damages.
The exceptions taken by defendant are |
upon the same grounds upon which |
non-suit was asked for in the trial
Court, and which was denied. They are
substantially as follows:
1. The plaintiffs cannot sue separ-
ately for the parcel of land in dispute,
because it is only part of the land of
Wainiha, which is owned in common
by many others, who have equal rights
TO every portion of it, and the defend
ant is one of them.
2. The plaintiffs cannot sue to dis
possess defendant from the parcel of
land in question, because the land of
Wainiha has never been partitioned |
between the respective tenants in COM
mon.
3. In this action all the tenants in
common should join either as plaintiffs
or defendants.
4. The records of the company do not
afford evidence that the land has been
legally paTtitioned in severalty, to each
member of the company
3. Defendant does not hold the land
in question for himself alone, but for
the company, and his claim is not hos
tile to the company.
8. No hui company has right to
make rules in contravention of the
law of the land.
The questions involved in this case
are novel, owing to the novel circum-
stance of q number of persons having
purchased land, and, while using a
large portion of it in common, have
to set off specific portions
Of the land in severalty 10 each tenant
This is not an uncommon transaction
in these Islands. To understand the
situation better we must remember %
that the vendees of the land of Wal
nina were tenants in common. We so
held in Ava V. Horner 3 Haw., 543 90
No efectual partition, either voluntary
Or by judicial action, has been made
between the tenants in common
We then ask what right has one CO.
enant to bring ejecUment against an
other co-tenant for a portion of the
common estate? There has been no
'uster of the plaintiffs by defendant from
he entire common estate. but only from
specific portion of the same Each
,o-tenant has the right of possession =
o every part OF the common estate. So
ar forth, then, the defendant is as
much entitled as the plaintiffs are to the
possession of the parcel of land in cues
ion But there remains the question
whether the agreement to occupy in
'eYeralty according to the method
dOpted by the tenants in common is
sufficient in law to give a right of
ct1On 10 the tenant to whom it was sci
III to recover its possession from an
'ther cO-tenant r
we find no case parallel but it seems
o US that such an agreement made as
his one is for the common benefit of
he owners of the land, to secure har-
=