The Hawaiian gazette., 1898-03-25
First Decision In the Railway
Wharf Case.
FINE POINT RAISED
Judge Stanley Passes On Injunc-
tons = One Dissolved-Railway's
Statute-An Appeal.

Judge W. L. Stanley of the First
Circuit Court has rendered a decision
in the case of Jas. A King, Minister
of Interior for the Republic of Hawaii
VS.. The Oahu Railway and Land Com
pany. The opinion is on Demurrer
and on Motions to dissolve Temporary
Injunctions." Gen. A S. Hartwell and
Alfred w. Carter are attorneys for the
Government in the matter and Kinney
& Ballou are counsel for the Oahu Rail
way and Land Company.
The Oahu Railway and Land Com
pany held its wharf land or water
front in the harbor here on a ten-year
lease from the Government. This in
strument was made at the time L. A
Thurston was Minister of the Interior.
One of the provisions of the lease was
that the company would peaceably va
cate at any time upon being given no
tice for ninety days and upon being
paid for its improvements. This no
tice was given September q, Of last
year and expired in December. Ten
der of an estimate of the value of the
Improvements was made. The sum was
large one and was offered in gold by
the Minister of the Interior, Captain
King. The Railroad Company declin-
ed to leave the land and refused the
tender of money for the improvements.
Further than this, the Railway Com
pany proceeded to condemn the land
under dispute, citing its statute of
Eminent Domain and securing an
order from the Court restraining the
Government from enforcement of the
lease provisions.
Thereupon the Government brought
an injunction suit and had halt call
ed by the Court upon the Railway cor
poration on the claim that Govern
ment property was not subject to con-
demnation and on the ground more
over that the company had waived
Eminent Domain rights in the prem
ises by accepting the land under
! lease.
After this there was something in the
papers about the matter. There was
also some talk on the streets with the
difference for a topic. A committee
waited on the Cabinet and the affair
| had an airing before the Chamber of
Commerce. 1t was represented that
there was great and manifest need for
more wharf room and that the Railway
Company had secured a right to its
waterfront and should be allowed to
hold the same under the law.
Judge Stanley holds:
/ Oob11 n and
pany, by the provisions or concessions
of its statute, has the right to con-
denim any land or waterfront mot in
public use.
The acceptance of a conditional lease
from the Government by the Railway
Company was not a waiver on the part
of the Railway Company OF any rights
or privileges it might have under its
charter or statute.
This touches only the demurrer. The
question Of whether or no the land in
dispute is " in public USE as claimed
by the Government, is a matter of fact
not yet determined. The demurrer
controversy does not raise the point in
a manner requiring decision upon it.
Finally: The injunction secured by
the Government continues in force I'M
til "the matter of fact" is adjudicated.
The injunction secured by the Railway
Company is dissolved
An appeal is taken from the decision
of Judge Stanley and the next proceed
ing will involve the very fine point of
whether or not the waterfront land
leased to the Railway Company is,
within the meaning of the statute, lin
public use"
This is one of the interesting para
graphs in the decision: Upon the
argument to dissolve the defendants
injunction it appeared that the defen-
dant's lease dated March Is, 1890, was
determined December q, 1897, by the
written notice from the Minister of In
terror dated September q, 1897, and
that by the terms of the lease the Gov
eminent had the right to re-enter up
on the prmises. This the Government
were proceeding to do until prevented
by the restraining order of this Court.
Upon careful consideration of the ques-
ton / am now of the opinion that the
Government was entitled to the pos
session pending the determination of
the question raised by the condemna-
ton proceedings, and that the order
restraining them was enormously is
sued If the defendants proceedings
in condemnation shall on the final
hearing herein be declared to be valid
they may seek redress in damages for
their being deprived of the use of the
premises condemned"