The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-03-10

Such allowance
occupation
they
But there should made voluntarily
parties
possession of of the
partition proceedings
Notwithstanding the
eowner
tenants share and
that share
by possession and to period of six years prior
to suit and perhaps to the period subsequent demand
OPINION OF THE COURT BY FREARJ
This suit in equity for partition The premises ques
ton admitting of equitable partition, sold by order
of the and the only questions raised by appeals
taken by the plaintiffs and by the defendant respect
ivey whether certain allowances should be made for
provemens the hand and for occupation
the other hand before distributing the proceeds the balance
of the proceeds the parties in proportion their
spectve legal interests in the premises.
Various improvements made the premises by the
defendant Kaau in good faith and the belief that she had
acquired good title to the entire premises and by the defend
ant Ia Say supposed grantee Kaaalu as part the
premises good faith and the belief that he had acquired
good title to that part of the premises.
Under such circumstances equity whatever may be the
rule law under different circumstances in equity
Is wen setted haC upon SAFE OF the premises IN prutol
proceedings allowance should be made the
This doing justice the by giving him the
benefit of the Improvements made in good faith and solely
through his efforts and injustice the other cotenan by
permitting him share in the increased value due to inn
provenen to which he has contributed nothing Equity allows
the value of such improvements part of the
legal title principle that he who seeks equity do
equity The shows allowance for
improvements limited the of claim
for and occupation 1t is regarded off
the claim The of the rule shows also that the
be allowed for the improvements their but
their value rather the increased value of the premises due to
the the making the should
be allowed only the value that he has created whatever
have him, and the other should not be compelled
pay for what he does not what does not exist These pr
cples well established Leake Hayes 10 Wash 213; Wor
Hingt0n rHiss 10 Nd 172 16 Att 534); Anhely De
sure II S. c. $50 @ S. E. 400; Buck Martin, 81 S. @. $50
(53 Am. Rep. 1925 johnson Peot "A G. 251 (5S Am.
Rep 253): fleece T. HAIL. 2S s. c.. c. S E. $500; Ward
Ward, W. Va. Gil 90 L. II. A. 449); Moore ThOl
16 R. 655; AHemdn a. HdVley, III Ind 532; Cooter o.
Dearborn, 115 III. 500
To apply these principles the present caehe award
made Li Say by the Circuit Judge the Commissioners
report of $1,000 for buildings and $50 for fences must
stand These items undisputed their amounts and
upon the foregoing reasoning they were rightly allowed on
principle The of the award OF $500 made to
Kaaahu for buildings Upon further reference to Master
improvements closely with the land the
Master allowed but the Judge daowed Kaaahu $3.50 for
road and 800 for ditch the land and $3.50 interest on
these items for u years per cent Upon the above re
onin the items of $50 and 800 should have been allowed
The item of $500 properly daowed Kaaahu and those
holding under her had the of the road and ditch and this
took the place of the interest the investment tar as she
concerned and the other hand we have seen Is
only increased value the that be allowed
against the other The Master and the Judge pom
disallowed claim made by Kaaahu for $4,000 for h
in the land time she took possession largely
low swamp land 1t appears found by the Master 'l'
most of this filing in was done not the expense by
procurement of kaaahu but by others who USED the F'
as common dumping ground, and the evidence Is uncertain
how much done paid for procured 70 e u'
v Kaaahu Her contends that Is the value not
the cost. improvement that should be allowed l. M
material how much it Kaaahu But all the auoTlI7
which hold that the allowance should be Tor the Vle "
tnelished from the hold with reference 10 d9e
which the cost exceeds value In such cases there
ing represent the of the cost over the Value anu
would be impossible allow it of the property or Its pro
ceeds It be allowed only by compelling one tenant to
pay out of the property which he Is justly l ~ 1900
fant TO whom he is under no obligations to such excess
and who can nothing for it To dlsato" an excess %