The Hawaiian gazette., 1898-03-25
Injunction Of the Commercial Co.
Dissolved.
COMMENT ON NIGHT WORK
First Decision in the Maui Railway
Fight-By Judge Perry-Some
Points in Opinion.

Judge Perry has rendered a decision
in the injunction suit of the Hawaiian
Commercial Co., Ltd, against the Ka-
hului Railway Co., Ltd. This matter
is from Maui The finding is favorable
10 the Kahului Company.
About three weeks ago, the Hawai-
ian Commercial people, at night and
with a considerable force of men, laid
railway track over the track of the
Kahului Company Considerable eX-
element was created on the Island of
Maui and the first reports received here
were to the effect that serious trouble
had been but narrowly avoided and
that friction in the future which might
result in the loss of life was not at
all unlikely. There was no disturb
ance of the peace. The Kahului people
were extremely indignant and the
Commercial people though they had
accomplished a master stroke and were
happy in satisfaction. 1t appears the
Commercial Company proposes to ex-
tend its plantation railway system,
construct a new wharf, operate steam
ers and practically cease patronage of
the Kahului railway and the Wilder
5. S. Company Mr. Wheeler a very
prominent member of the San Francis
co and California bar came to the
Islands to be counsel for the CONNER
cial Company during the railway right
of way fight.
So soon as the Commercial Company
had completed its crossing over the
Kahului Company rails, its attorney
came to Honolulu and applied for
Court order to enjoin the Kahului
Company from in any way interfering
with the crossing or touching it or OBJ
structing the use of it, claiming that
there was a serious flaw in the right of
way title of the Kahului Company in
that particular section of the Island.
4 temporary injunction was granted
and the case came on for hearing on
It's merits before Judge Perry. The
Judge has dissolved the injunction.
Mr.. Wheeler has returned to the Coast,
but leaves the case in the hands of
General Hartwel Kinney & Ballou
are lawyers for the Kahului people
OF what the next step in proceedings
will be there is as yet no hint. In
the finding Judge Perry says that the
Kahului people have been using the
land under the claim of right for six
teen years to the knowledge of the
other company. If the .Kahului Com
pany is a trespasser, sets forth the de-
cision, it may be proceeded against in
the usual form in the Courts. Follow
ing are extracts from the opinion of
Judge Perry:
The course pursued by the com
plainant corporation in putting in the
crossing at night and thus getting pos
session eff land at the time exclusively
in possession of another, against the
viii of such other, and without ad-
judication of its rights by the Courts,
is one which this Court does not ap-
prove of, and which therefore it can
not encourage. (For this course I wish
TO say, Mr.. Hartwell is in no way re-
sponsible-The work had been done
and the crossing completed before he
came into the case.) If it is proper
thus to put in a crossing and to that
extent to interfere with the possession
Of another, it would be equally proper
to entirely dispossess such other in
the same manner of the same portion
of track, or of the whole track. The
difference would be merely in degree,
not in principle. A party not in pos
session, under circumstances such as
exist in this case, should await the de-
cree or judgment of the Court, declar-
atory of the rights of the parties, be
fore taking possession.
Even though the respondent is a
trespasser or wrongdoer, still l think
that his possession cannot properly be
interfered with by preliminary injunc-
ton, issued ex parte.
1T is immaterial that it is alleged
in the bill that the crossing does not
interfere with the running of respon-
dents engines or cars. Complainant
will use its new track or crossing, and
such use will present to respondents
engines and cars new dangers which
must be avoided and guarded against.
The possession is interfered with