The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-01-13


an estoppe something else than weeks delay in bringing
these proceedings would be required the part of the plaintiff
The covenant in regard to fences was that the ecs will
fence and keep fenced all lease as pre-
vent the passage stock and be liable for all damage resulting
the passage stock from their said ncore into the lands
of the lessor &C. Defendants contend that the only penalty
breach Of this shown by the itself be
payment Of the damages resulting from the passage of stock,
and that penalty forfeiture does apply this
But clearly provides for forfeiture upon breach Of
any of the covenants &c. Of which this certainly one and
there nothing indicate that the payment Of damages
tended be the only penalty find exception under which
this question be raised.
It is contcnde further that the only proof thai there could be
Of the breach Of this stock did pass and that there
such proof There testimony that the fences
completely gone places and Of repair in other places,
but conenlcd that testimony that stock actually
passed through This question of law raised by the cxcc
tons. The instructed the jury the theory that the
called for that would prevent the passage Of stock,
fences that did prevent their passage and exception
taken On the contrary defendants themselves asked the
charge that ay fence that you satisfied roud prevent the
espass of stock will comply with the fences In
our opinion the instruction
The covenant as to right of way is that the lessor shall have
unrestricted right way twelve feet wide through the deed
premises from the mauka land along the IIauua boundary the
the field; thence in Easey
direction the hresng floor and around the said trng
floor and thence Northeastcry direction along old Kuanu
Avail" The breach if any of this consisted in defend
ants digging patch that Of it extended about
feet into the road thereby leaving the road only feet
wide at that point which width plaintiffs evidence tended
show was insufficient allow her heavy wagons pass
The defendants attempted show that the wagons could
pass The evidence a whole sufficient support finding
that the the defendants width of
feet this point and if it necessary find that this
for the plaintiffs requirements 1t IS contended that
assuming these been the facts there breach of
the because the provided merely that the r
should have a unrestricted right of way and that therefore
the defendants bound make keep repair the way
but only to allow the plaintiff have way and that there
no evidence that they did anything the plain
tiff from filing in the of the rice patch, if she wished
wider road at point 1t Is the defendants not
bound keep the way in repair except in far as such repairs
might rendered necessary by their wrongful acts and the
court instructed the jury but the also charged that
they dug the rice patch make it extend within the
prescribed twelve feet and that such digging would interfere
with the use of portion Of the right Of way SUCH that would
be restricting the right OF way and would constitute breach
of the covenant and that the effect of the word unrestricted
as used in the lease that the defendants should not by any act
of theirs knowingly wiuly permit allow or suffer the
INTERRUPTION of the use or enjoyment Of the thing right granted
This was as favorable instruction the defendants could e
pect upon this point and they took exception to it.
Exceptions were the instructions that the lauua
boundary referred the relating to the right OF way
must be taken the purposes of this to lie along the line
Of the stone wall referred by the witnesses, and that the PLAN
Tiff IS entitled under the lease unrestricted right OF way
twelve feet wide adjoining that stone wall as well as along
the other places mentioned in that covenant OF the lease IL w"
at point along wall that the rice patch was dug INTO
the road An exception taken also to the following question
put by plaintiffs counsel TO Dr. Carter, plaintiffs husband ana
cont doctor YOU may state where the boundary was, the
Uoulo boundary was within the understanding and intention,
if YOU know of parties this easeF The answer to TINS
question was that "the boundary understood by us was the wall
an old stone wall" &c The witness also testified that there had
always been road along it. Afterwards on crosseSamna0
he said in substance that he had always understood that the wa"
was on the Hauua boundary bit that he had heard that stone
walls were often made only approximately upon oounu"i