The Hawaiian gazette., 1896-08-07
OPINION OF THE COURT, BY
JUDD. c. J.

tE4NloN Or 4AE NOCR nj b1
JUDD. c. J.
This case comes 10 Us upon exceptions
from the Circuit Court, Fifth Circuit,
where the case was heard by Circuit
Judge Hardy, jury waived. Il is an
action OF ejecJment.
The trial Court found the undisputed
facts that in January, 1863. some fifty
native Hawaiians bought the land OF
'-Wainiha" on the Island Of Kauai. On
the 10th OF September, 1871, q written
constitution was signed by them. OF
these persons one was humahakaua
and another hilauano. The father OF the
plaintiffs. This constitution provided
for q general manager Cuna nui). sec
rotary and treasurer, and gave the care
and control Of the land Of the company
(hui) 10 the general manager. Ii was
provided by Sec. ; OF the constitution"
that i've acres should be set apart TO
each member Of the company. The
method adopted was thai applications
for lots we're made in writing, and, on
approval as 70 location, given al
stated meeting Of the company held in
pursuance OF the constitution twice
year. the manager and secretary issued
10 the applicant a certificate, setting
on 10 him by metes and bounds the
parcel Of land applied for.
humahakaua made application for
z 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, Kilauano,
in 1875, il was awarded by certificate di-
rectly TO hilauano in 1881. This allot-
ment was ratified by the company az
the meeting OF July. 1883 The plaintiffs
are the children OF this Kilauano, de-
ceased interstate. The defendant W. ka-
leikini. also one OF the tenants in COM
non OF this land, finding the tract in
question unoccupied-thaU is, no one
actually living Jhereon-Jook posses
sion Of It in 1884 and refused TO restore
il 10 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.
Nc 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:
l. The plaintiffs cannot sue separ-
ately for the parcel OF land in dispute,
because II is only part OF the land Of
Wainiha, which is owned in common
by many others, who have equal rights
10 every portion OF il, 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
8. 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 partitioned in severalty, TO each
member Of the company
). Defendant does not hold the land
in question for himself alone, but for
the company, and his claim is not hos
tile 10 the company.
8. No hui company has a right TO
make rules in eontravention Of the
Law OF the land
The questions involved in this case
are novel, owing TO the novel eircum-
stance OF 4 number OF persons having
purchased q land, and, while using 2
large portion OF il in common. have
undertaken 70 set OF specific portions
OF the land in severalty 70 each tenant
This is not an uncommon transaction
in these Islands. To understand the
situation better We must remember u
that the veudees OF the land Of Wal
nina" we're tenants IN common We SC
held II Ava Y Homer, Hsw-, 543. q
No edeetUzl partition. either voluntary
or By Judicial action, has been made
between the tenants in common
We then ask what right has one co
tenant TO bring ejectmenr against an,
other co-renant for q portion OF tbs
common estate2 There has been NJ
custer OF the plaintiffs by defendanrfrou
z specific portion OF the same EacI
co-tenznI has the right Of possession
70 every part OF the common estate S.
far forth. then, the defendant is al
much entitled as the plaintiffs are 10 u,
possession Of the parcel Of land in ques
ton. But there remains the question
whether The agreement TO occupy il
seVerzlty according TO the metho,
adopted By the tenants in common i
Sufficient in Law 10 give z right o
action 70 the tenant to whom IL was Sc
CLIO recover its possession from an
oth4 Acp-tenant
We find no case parallel, but IL seem
FnalssczE such an agreement made q
this nnS fSr for the common benefit o
me oFrers OF the land. to secure har
Ell LoG o