The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-08-21
OPINION OF THE COURT BY FREAR, c.J

This is proceeding begun in September 1897, under Act Is
of the Laws of 1895 Civ L. CHI 14) for the acquisition of
right way waterppe and hume The defendant Claus
Spreckes the legal of the land which the
right of way desired The Hawaiian Commercial and Sugar
Company that claimed be the equitable owner Sub
seoueny the former executed conveyance of the land the
latter and on the the Judge signed order dis
missing the the From this order the plaintiff
appealed to this
The defendant corporation then given leave its notion
to withdraw It's demurrer previously filed and file plea
answer twenty days and also file plea without losing
right within the time limited This more than
three wears after the demurrer fled 1t then filed special
plea denying plaintiff had been unable with it
and alleging the plaintiff had made attempt to
he authorizes the condemnation proceeding when the
person desiring the right of way SIS unable with the
person or persons whose land &c The defendant
poraton afterwards fled in which after recng that
the had been dismissed Spreckes and that the plea
had been filed by without waving the with
twenty days denied the allegation of the petition that the
land question owned and in the possession of Spreckes
and aveed that it itself had since the commencement OF the
proceeding acquired the land by deed from him and then held
the absolute ownership of the land Fee avered that it relied
upon the up in its plea which it made part of its
answer that the petition verified required by law
that the petition failing show the width
depth of land sought be acquired that the plaintiff had al
ready constructed and operating pipe and fume said
land upon the line shown upon the tracing attached the pe
on relying in doing upon the written of Sprecke
by his attorney fact that facts stated forth in
the petition showing for what agricultural purpose the right of
desired why the acquiring of the by the plaintiff
reasonable proper useful The plaintiff demurred the
plea and moved strike portions the the
ground that they related that available de-
nurrer only and also filed replication to the
The Circuit Judge denied the motion strike but treated
the matters objected to surpuage and also declined to dis
miss the bill. Afterwards evidence introduced showing
other things that the plaintiff prior bringing suit had
attempted and failed agree with Sprecke but had
tempted agree with the defendant corporation Afterwards
by stipulation subject the defendants right appeal decree
signed granting the plaintiff the right of and assessing
the damages From this defendant corpora
ton appealed.
The alleged formal defects in the verfcaon and in the allie
cations the width and depth of the land required the
particular agricultural purpose for which required and
to its acquisition being reasonable proper and useful mat
which, they would have been good grounds of de-
m1er, which do decide waived by the Withdrawal
Of the defendants demurrer and the filing of late
date by special leave of Whether formal of this
document purpong be and the latter be treated
such demurrer a DISMISS the
theory that proceedings of this kind by the rules
of pleading which govern ordinary civil actions need not
say They doubt could be raised after hearing the
merits and in opinion could not properly be raised IN an