The Hawaiian gazette., 1906-11-16

and avoid It's validity because OF the
releasee's want Of possession.
| EVEN n such a deed would not be
valid under such circumstances nj
| common law, II would be valid here
! under Hawaiian usage and decisions
AN award and patent described
land by courses and distances which
would carry 1t to the upper side OF a
| street near the shore and parallel with
II, and by a natural monument, the
I edge Of the sea- which would carry
II further TO at least high water and
might have been intended to carry It to
low water. and contained diagram
which shows the lot as described by
courses and distances and extends In
dotted lines the side boundaries to the
water and connects them with wavy
lines marked the sea- and marks the
space between those lines and the
lower course and distance line the
beach.' which space also Is shown by
the evidence to cover land below high
water. Held, the title extended to low
water.
"A decd describing the land as above
without the diagram but adding with
the right of extension to low water
mark carries the fee to low water
| mark.
"a deed conveying land described by
courses, distances and monuments
which would carry 1t to the upper side
of road running near the shore, and
also the sea beach In front of the
same down to low water mark is held
| under the circumstances to include the
area between the lower course and dis
! lance boundary and high water mark
as well as the area between high and
| lev water marks.
"The rule that accretlon should be
divided between adjoining proprietors
So as to give them new shore lines
proportionate with the old is not of
universal application-as. for instance,
when there is deep indentation or,
As In this case. a sharp projection.
"A verdict should not be set aside
because the jury failed to observe any
| erroneous Instruction.
THE reading of the testimony given
at former trial of the case by
witness temporarily absent from the
Territory ut the present trial Is held
harmless, If erroneous, because If all
the evidence on the point testified to
ian alleged break in the alleged adj
verse possession of the defendants and
their predecessors were stricken out,
there would still be no evidence that
there was adverse possession during
the period testified to and the burden
was on the defendants to show that.
Moreover, this was not a case for
lacking.
fNp ha tl oh. IL
find against the defendants on the
issue of adverse possession unless they
were satisfied by preponderance of
evidence that the defendants have
clearly proven adverse possession etc.,
is not erroneous.
when for long period a plaintiff
in etectment and his predecessors have
made no claim of title and the de-
| PENDANTS and their predecessors have
| been in possession under claim of title,
the court may. according to the cir
cumstances, instruct the jury that thew
may or should presume a deed to the
defendants predecessor in order to
| quiet their possession and solve the
difficulties, and in so doing the jury
may consider what may have occurred
as well as what may fairly be sup
| posed to have actually occurred. In
this case the question was left to the
jury. and the evidence was such as to
| permit. If not require, them to find
against the theory of lost deed.
When the land sued for includes
| parts above and below high water
| claimed under one title and treated
| largely as a whole and the defendants
70 ho IN,
water at least. little evidence is re.
CURED to show that they are also In
possession of the part below high wa
ter There was sufficient evidence to
show this in this case
1T is not sufficient ground for a new
trial that the trial judge, in overrul-
ing motion for a directed verdict In
the absence of the jury, made, by way
of explaining his decision. remarks
which showed that he leaned strongly
toward the plaintiffs side in his view
of the evidence and that such remarks
We're published in the newspapers and
read by the jurors before the case was
submitted to them and were referred
l" ana read by them after the retire.
inht, although they had been instruct
ed not to be influenced by them-the
octenuants. movants for the new trial,
having consented previously that the
jurors might read the newspapers and
asked the judge not to order them not
10 read them and stated that they. the
defendants. were willing to take their
chances
fhe erroneous admission, in oppo-
sit'oh to a motion for new trial, of
n a