The Hawaiian gazette., 1903-11-13
DOVER LAW
EXP0UNDED
Supreme Court Decision
Reversing Equity
Decree.


S. Perera and s. Kobayashi is reverse,
by a unanimous opinion of the Supreme
Court, written by Chief Justice Frear
| The case was submitted June II, ant
decided November II. 1903.
In conversing about the decision yes
terday evening Judge Robinson SAID
1t sustained him in asserting the right
of the plaintiff to dover, and only re.
quired amendment of his decree with
regard to the time from which the
damages should be computed. His de-
| cree held it was from the husbands
death. whereas the Supreme Court
makes II from date of demand.
The syllabus and some extracts from
the decision are given below:
SYLLABUS OF opinion.
A suit for dover may be barred by
the general statute of limitations ap-
plicable to actions for the recovery
of land. but the statute does not neces-
sarily begin to run from the death of
the husband, us for instance. when,
as in this case. the widow is by the
statute permitted to occupy with the
heir. without assignment of dover, I'M
til the latter objects. and the land re-
manned va"ant, and the heir and the
widow lived together on adjoining land
and the heir or her grantee did not
claim adversely until nine years after
the husbands death.
Damages for the detention of dover
are allowed under the circumstances
only from the date of demand.
STATEMENT OF CASE.
This is a suit in equity for assign
ment of dover and for damages for
detention of dover. The plaintiffs
husband died intestate seized of the
land in question June 30, 1871, leaving
minor daughter as his only heir and
the plaintim as dowress. The land,
which is situated on Liliha street, Ho-
nOlulu, was then vacant and remained
so until the daughter, having come of
age, conveyed 1t to one Naul<ana. Oc-
tober T. 1880. During that period, the
widow and daughter lived together on
land adjoining the land in question.
Naukana leased the land, March 20,
1882. to one Wong Quing for ten years
at 500 n year and on April %, 1883, |
conveyed 1t to the defendant Pereira
who, some time after the expiration of
the lease, filled in the land, which was
low and wet, and on May !, 1899 leased |
1t for fifteen years at $500 year to |
the defendant Kobayashi, who erected |
a hospital upon it. The Circuit Judge |
held that the plaintiff was entitled to
dover and, finding that dover in the |
land could not be set apart without
injury to the owner, ordered II to be |
paid in money amounting to $51l.76, |
being the present worth, at the legal |
rate of interest, of ond-third the in |
come for the Widows expectancy of |
life, and allowed further the sum or
$S2719 damages, being one-third the |
rents, and interest thereon, received |
under the two leases up to the time of
the interlocutory decree. The defend !
ant Pereira appealed.
TITLE TO DOVER.
The first question is whether the
plaintiff is now entitled to dover at
all. No question Is raised as to the
amount at which her dover interest,
If any, was valued. 1t Is contended |
that her right of action accrued on
the death of her husband, in 1871, and
that therefore she is barred by the
statute of limitations, the period pre-
scrlbed by which for real actions was
twenty years at the time this suit
was begun in September, 1899. There
is much difference of opinion elsewhere
as to whether general statutes of limi-
tations are applicable to actions for
dover tSee 10 Am. & Eng. Enc of
Law, I'd Ed, POS; 10 Id. 1900 and we
have no special statute on the subject:
but in our opinion the better rule is
that the general statute does apply,
and it was so stated in Makauhana VS.
Pua, Haw. 651
WHEN STATUTE BEGINS.
But does 1t run from the time the
right to dover accrued, in this case
Tune 20, 1871, when the husband died,
)r from the time an adverse claim
IS set up against 1t, in this case April
y, 1888, when the daughter conveyed?
If the latter date, the twenty years
lad not elapsed when this suit was be-
gun. There Is no evidence that the
laughter claimed adversely to the
widow before that date. The land in
question was vacant and they both
ived together on adjoining land. There
s upon this question also-as to when
he statute begins to run--some differ
nee of opinion elsewhere.
ase, the widow had "A right under the
tatute 10 occupy the land with the
cir or to receive her third of the rents
ssues and profits, until objection .
hould be made by the heir and when p,
he land remained entirely unOccupied
nd both heir and widow lived together
n adjoining land in friendly way.
he widow would he under no obliga- :
On To call for an assignment of dover
nd the statute would not begin to "
un until one of them began to claim
dversely to the other. There wis -
o occasion before that for the widow Il
, assert her rights. "
1t is argued, however, that equity Is
OF bound by the statute of limita- y
ons and may deny relief on the
round OF laches, even when the stat 9
te has not run. 1t Is true equity W
Ids the vigilant, not those who sleep y
pom their rights" but 1t is also true u
lat Equity follows the law" and this
ems to be case for the application I"
the latter maxim.
WHEN DAMAGES BEGIN. "
The remaining question relates to