The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1898-07-30
OPINION OF THE COURT BY FREAR, J.

This is bill in equity Injunction restrain the de
PENDANT domestic corporation doing business principally III
conducting railway the island of Maui with Its wharf and
main Office at seaport Of Kauui from proceeding
under an alleged right domain condemn and take
for the purposes Of its railway certain land in said town of ka-
luu belonging to plaintiff foreign corporation dong
principally in conducting planaon) ON ad
island Of The relief is sought the grounds that by tax
mo said land the defendant would obtain exclusive access TO
the Kauui and thereby, we'll by depnvng the
laintif of the use of said land plaintiff rrearable
injury and defendant has right of eminent domain
The defendant denying both these grounds and aver
INC the contrary and also held the said land under certain
deeds made with authority by the Grown Land Conmls
soners prior to the conveymce from the Hawaiian Govern
ent under which the plaintiff claims The Circuit Judge after
hearing evidence found for the defendant on both grounds ree
on by plaintiff and dismissed the bill The panhH no"
brings the to this court appeal
As to the first ground Circuit Judge fully supported
bv the evidence finding that the frontage the harbor
available for wharf purposes which the defendant proposed to
take only little than onehrd OF the Whole frontage
available purposes and consequently that the defendant
would not by taking land in question obtain alleged eN
elusive the habor, but this point becomes oaV
in view of our conclusion the decision of the Circuit Judge
must be reversed the other point In our OPINION the o
PENDANT right of eminent domains and by the weight OF
authority defendant practically comedies IN tins case an
Injunction may properly be granted restrain the taking OF
properv under alleged but non-eXing right OF eminent
domain.
Whether defendant may exercise the right OF eminent
domain or depends upon the constutonay and cosruc
ton of the Railway of and the construction OF d
PENDANTS charter If that Act is unconstitutional the defendant
has not the right question. This point of the constutonay
Ac for the first time IN this court ana was
argued with great ability by Mr. Chas 5 Wheeler OF the Dan
Francisco Bar permission of the court and without Objection
from opposing counsel but in view of our OPINION upon the
question of the construction of the Act 1t will be unnecessary
- mass mon its contuonaity Whether, far as the con
tcon of the concerned, the defendant may exercise
tho oI Of eminent domain depends upon whether that
Act confers that right upon all domestic public railway cor
ations or only upon such have contract with the Minister
Of the Interior as provided the first section OF the Act 1t
is conceded that defendant has such contract unless con
taned in its charter Whether the charter contains such con
tract will he considered later In opinion only such cor
oratons as have such exercise the rS1 i'll
question under this Act.
This Act Chapter % of the Laws OF Is - entitled AL
A., 70 Pr,note the Construction Railways, and reads as
follows:
.Secio1 l. Power authority IS hereby given to the
r Of the Interior bv and with the consent of His Majesty
in Pvv Council into contract with any ASSOCIATION
~ who NAV associate themselves together under the Genera
ron Act of this Kingdom, and by the general law III re
ton 70 corporations and subject all the provisions thereof 10
b n,rpose of building and operating railroad or a roads
any part of this Kingdom
.Section ? the said Minister with the consent OF III
Majesty in Privv Council, shall have power and authority
- iolt Of way through all Government lands and to gran