The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-11-17
THREE OPINIONS REACH
THE SAME CONCLUSION

Henry Smith is declared, in a three
barreled decision of the Supreme
Court, not to be an abutter on a GEL
tain strip of land that was abandoned
as part of Fort street, and thel afore
not entitled to compel the Government,
under the statute for such a case pro
vided, to give him the first offer of the
land before selling it to another.
All three Justices have their individ-
ual opinions recorded, but agree on the
deciding issues.A Henry Smith brought
BIZ in equity seeking the cane, fla
ton of a deed executed by Governor 5.
b. Dole conveying to Mary A. S. Rose
a triangular piece of lan,l which con-
tanned an area of 1880 square feet.
Ire Circuit Judge found for the COM
plalnant and decreef :he canceliiig rf
the deed. Mrs. Rose and Governor
Dole appealed. The case was submit
ted April % last and decided Noven.-
-.
complainant; ]. w. Cathcart for the.
Governor and Kinney, McClanahan &
Bigelow for Mrs. Rose. Justice Gal
braith writes the leading opinion,
which concludes thus:
"The bill should have been dismissed
for want of equity Tn, decree ap-
I..1 f,,. t.. ~
remanded to the Circuit Judge with d.
rection to dismiss The bill and for such
other further proceedings as may be
proper
THE STATUTE.
Section 354, Civil Laws, upon which
the complainant based his claim, reads
as follows
"AH lands and real property taken for
highways or improvements under this
Act shall belong to the Hawaiian Gov
eminent absolutely and in fee simple,
and in case a highway or improvement
shall at any time be vacated, closed,
abandoned and discontinued, the land
of such highway or improvements shall
be used for the purposes of the Gov
eminent: provided that in case the
same shall be in any way disposed of
by the Government, it shall be first
offered to the abutters in compromise
for a reasonable length of time and at
a reasonable price, and if they do not
take fhe same then it may be sold at
public auction
Following are some of the reasons
given by the Justices for the conclu-
sions in which they concur:
BY JUSTICE GAEBRAITH.
Under the issues presented there is
but one difficulty in deciding this case, !
namely, to determine the proper con-
struction to be placed on that part of
the section providing that in case the |
land embraced in the abandoned high !
way shall be sold by the Territory lit |
shall be first offered to the abutters in |
for a reasonable price
etc. If the phrase in compromise" !
were eliminated the difficulty would |
vanish and the meaning would be plain. |
The construction adopted by the |
Circuit Judge treats the phrase in |
as meaningless and the |
would if those words had been omit |
ted. We cannot approve of this con- |
since we are bound to assume |
that the legislature had some purpose
in inserting the words. The position
of the phrase in the sentence seems to |
warrant the inference that it was used |
to express the purposes of making the |
offer and to limit the abutters who !
were given the right to demand that |
the offer be made. All abutters on an |
abandoned or vacated street were not |
given the right by this statute to de- |
mand that the land be offered first to |
them at a reasonable price before being |
sold, it was only such abutters as might |
be injured by the vacation of the high |
way and thus have a claim Tor dam |
ages against the Territory and whose |
claim for such damages might be set |
tied or compromised by such offer and |
a sale in pursuance thereof: To the |
abutter who was not damaged it would