The Hawaiian gazette., 1903-11-17


ment that while 1t would doubtless
have been to Smiths advantage to own
the abandoned street In order to rn-
able him TO exchange it with Mrs. Rose
for another tract Of her land which he
desired still he was not deprived CT
any property right by the abandonment
of the street or denied any right given
him by law by the failure of the Su-
perintendent of Public Works to offer
him the land sin compromise"
BY the offer an compromise to Mrs.
Rose and her acceptance she obtained
an outlet to the highway and her claim
for damages that would have accrued
had the land been sold to complainant
or any other person was superseded" !"
BY CHIEF JUSTICE FREAR.
1 concur in the foregoing conclusion.
but express no opinion as to the signiii-
canoe of the words sin compromise"
in the statute, except that the con-
struction Of those words Contended for
by the plaintiff, to the effect that they
require the entire land (e. g., long
street that is closed) to be offered as a
whole to all the abutters to be divided
among themselves in compromise with
each other, clearly cannot be sustained.
That construction would violate both
the language and the spirit of the sec
ton and be unreasonable and impracti-
cable. The words sin compromise" in
this section are to say the least used
somewhat loosely and their meaning
is very obscure
The Chief Justice reasons that the
law requires the land to be offered
to all the abutters where there are
several. as it would be unfair to offer
the whole to one of them, adding:
The only alternative would be to
divide the land and offer each part to
the abutter on that part That would
be the fair way and evidently the way
called for by the spirit of the statute.
In most cases there would be no diff
Guilty in doing this with fairness. But,
as in this instance, the circumstances
might be such as to render 1t difficult
to say just who are the abutters and
to what extent. 1t is clear that Mrs.
Rose was at least the principal abutter
on the land in question. Nearly If not
quite all of it is in front of her lot.
while only short stretch of side of
Mr.. Smiths lot borders on it and that
not Immediately, for narrow strip
along his lot was withheld from Mrs.
Rose, perhaps accidentally, and after
wards offered to Mr.. Smith, A con-
tnuation of this tract in what is known
as "Old lane" which ran between two
pieces of Mr.. Smiths land, has all been
conveyed to him, and, that, too, though
Mrs. Roses lot for a short distance on
one side, bordered on that in much the
same way that Mr.. Smiths borders on
this. The whole transaction cannot be
set aside merely because the Superin-
tendent of Public Works may not have
divided the land exactly as the court
would. Some room must be left for the
exercise of discretion in the execution
of the details. No better mode of divi-
sion than that made has been sug-
gested to the court, and it is not clear
that there is any better or fairer.
BY JUSTICE PERRY.
In my opinion the offer contemplated
in Section 354 is to be made to all of
the abutters whoever the class so des-
ignated may include, that is to say,
to each of the abutters the portion on
which his land abuts. The words "in
compromise" do not, as | think, limit
the class of abutters to whom the offer
is to be made but are to be read and
understood as though inserted imme-
diately after the word offered, l. e.,
they were intended to show the nature
or the object of the offer and not to
describe the permitted purchasers at
private sale.
Justice Perry holds the words Eat a
reasonable price to have their orii-
nary meaning of "a fair valuation"
and then gives this view of VIVA
compromise" means:
If it be asked whv tbs words "!n
compromise" were inser,ed, | suggest
that the most plausible theory is that
what the legislature had in mind was
a satisfaction of claims, founded on
justice If not on law, that abutters
might make to the effect that such
abutters should be given the first op-
portunity to acquire the abandoned
Arguing, similarly to his colleagues,
for the superior right of Mrs. Rose uI,-
der the statute, Justice Perry thus
concludes:
If. on the other hand, the STRIP, as
seems to be shown by some of the evil
dence, was part originally, not of
Fort street, but of what was known as
Old Lane which continued northerly
across the land of the complainant
then even more clearly was Mrs. Rose
the only abutter upop this strip. She
should be offered the portion running
across her land or upon which her
land fronts and likewise the comolain-
ant should be offered the portion run
ming across his land. The latter por-
tion has been conveyed or offered to
the complainant; he alone Is an abut-
ter as to that.