The Hawaiian gazette., 1903-11-17
THREE OPINIONS REACH
THE SAME CONCLUSION

Henry Smith is declared. in three
barreled decision of the Supreme
Court. not to be an abutter on a cer-
tain strip OF land that was abandoned
as part of Fort street, and theiafore
not entitled to compel the Government.
under the statute for such casf pro-
vided, to give him the first offer of the
land before selling 1t to another.
All three Justices have their individ-
ual opinions recorded. but agree on the
deciding issues. Henry Smith brought
bill in equity seekilg the care 'ila-
tion of a deed executed by Governor 5.
b. Dole conveying to Mary A. S. Rose
a triangular piece of lanl which con-
tanned an area OF 1880 square feet.
Tire Circuit Judge found for the COM
plainant and decreci he canceliins rf
the deed. Mrs. Rose and Governor
Dole appealed. The case was submit
ted April % last and decided Noven.-
ber 16. f.. c. Peters appeared for
complainant; j. 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 APP
pea!ed fr IN is reversed and the CAUSE
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:
"All lands and real property taken for
highways or Improvements under this
Act shall belong to the Hawaiian Gov
ernment absolutely and in fee simple,
and in case 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
ernment; 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 the 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 GALBRAITH.
Under the issues presented there Is
but one difficulty in deciding this case,
namely, to determine the proper con-
structon 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 "it
shall be first offered to the abutters in
compromise, 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
compromise" as meaningless and the
section as meaning exactly what II
would If those words had been omit
ted. We cannot approve of this con-
struction 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 1t 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
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, ii was only such abutters as might
be injured by the vacation of the high
way and thus have claim for dam
ages against the Territory and whose
claim for such damages might be set
tied or compromised by such offer anG
a sale in pursuance thereof: To the
abutter who was not damaged 1t would
be impossible to make an ol1er IN
He would have nothing
to compromise with the territory for
the reason that he is not injured by its
acts.
This Interpretation does not mean
that the land shall be offered to the
injured abutter at a reasonable price In
exchange or settlement of IA claim for
damages that he may have on account
of the vacation of a street OF that the
amount of such claim for damages
shall be estimated by the Superintend-
ent of Public Works and credited on
would be within one meaning of the
word Compromise" but the word in
this statute Is undoubtedly used In an
other sense, namely, as IAN agree
ment OF compact adopted as a means
of superseding an undetermined con-
troversy." Cent. Dict.
OF two abutting owners on an aban-
doned highway, one has the same free
and convenient access to his premises
after as before the vacation while the
access of the other to his premises Is
entirely cut off. No offer in comprom-
ise could be made to the first for the
reason that he has sustained no injury
and has nothing to compromise with
the Territory but between the latter
and the Territory there exists IAN un-
controversy" on account of
his property taken and his right de-
stroyed by the abandonment OF the