The Hawaiian gazette., 1906-11-27


taht uoctrine OF adverse possession IT
contains. 1t is in the case of Eliza.
beth N. Wider vs.. II. X. Mactarlane
Jr ana Mary l.. Macfarlane, heard on
exceptions from the irst Circuit Court
Circuit Judge De Bolt sat in place OF
Justice Wider. disqualified:
Adverse possession.
Exclusive use of land fenced off by
the owner under mistake or her true
boundary if continued Tor the statu-
tory length of time would bar an ac-
ton of cjectment by the owner al
though the adjoining land was held
under lease and the lessee claiming the
intervening strip by adverse posses
sion knew that the fence was not on
the true boundary.
Id.-Continued adverse possession by
one not in privity of estate or contract.
Two years after the making of the
fence on the wrong line the lessee of
the adjoining land assigned the lease to
the lessor of the defendants who took
possession of the intervening strip of
land. Held, in the absence of n trans
fer of this strip of land, whether oral
or written, the taking possession Of it
ate act of disseisin on her part and
that in respect of this title there was
no privity or succession of relationships
created by deed or other act or by
operation of law.
OPINION OF THE COURT BY HART
WELL, j.
The plaintiff brought ejectment for
a strip of land at Waikiki % feet long,
IL feet wide at the mauka end and
"a feet wide at the makai end, CON
tanning 6O3 square feet, lying along the
easterly side of l.. c. Award 922 to
Okuu, purchased September %, 1899,
by the plaintiff from Nina and others,
| devsees under the will of Okuu. This
title was shown at the trial. The de-
PENDANTS hold as tenants under Mrs.
| +. w. Macfarlane who claims that she
and her predecessor in interest, her
| father II. A. Widemann, held adverse
possession of the premises for over ten
years prior to November Is, 1904, the
date of the action. The jury found
I for the plaintiff, the court having re-
fused to direct a verdict for her, and
the defendants bring numerous excep-
tions to rulings and instructions as
well as to the verdict
In order to sustain the defense it is
essential that Mr.. Widemann's occu-
pancv should have been under a claim
of ownership in himself and adversely
to the owner of the Okuu land. Adj
Joining the Okuu land is a wedge
shaped parcel of land belonging to the
Bishop Estate which was leased to +.
w. Macfarlane November l, 1888, for
II term of fifteen years. This lease
was assigned by Macfarane to Wide
mann in 1891 and was assigned by
Widemann to Mrs. Macfarlane in 1895.
The lease was never recorded and it
does not appear that occupation was
taken under it until 1894 when High
and Pratt entered into possession un-
der an oral lease from Widemann for
a term of five years, at the end of
which time the Macfarlanes entered
into possession and in 1908 the Bishop
trustees conveyed the land to Mrs. Mae
farlane. In 1898 Nina, one of the
plaintiffs grantors, made fence along
line which she was advised by a
native surveyor was the easterly
boundary of the Okuu land leaving out
side of the fence the strip of land in
controversy. High and Pratt, under
their lease from Widemann, built a cot
tage in 1894 which does not appear to
have covered any. of this land, and an
clubhouse extending along the line of
the fence and across the land.
The first question to settle is whether
after the fence was made there was
adverse use of this land by Widemann
or his tenants which, if continued for
a sufficient length of time under the
statute of limitations, would bar an
action of ejectment by the owner of
the Okuu land.
This was not a case of mutual mis-
take about the boundary, for Widemann
knew, as he said, that Nina placed
the fence inside of her land and not
on the true boundary. Her assent to
his use of the land outside of the fence,
as held in Schraeder VS.. Packer, 1919
L, S. Cos, twas an acquiescence re-
sultng from pure mistake and error
which should not bind the plaintiff or
estop him from claiming his rights
when he discovered the mistake The
use was, .however, such as would
naturally be made by the owner, in
of horses. The use was not permissive
since the owner did not know that it
was her land that was being used.
Disseisin or custer may be implied from
Widemann exclusive use of the land
fenced off which, if continued for the
statutory length of time, would have
precluded the owner from maintaining
ejectment.
But the more difficult question to
answer is whether Mrs. Macfarlane up
on succeeding to the Bishop leasehold |
in 1895 could claim the benefit of her |
fathers adverse possession. The court, |
Mt the plaintiffs request, instructed |
the jury that "in cases such as this, |
where there is no such deed, will or
other writing, transferring the land in
dispute, it is incumbent ON the de-
PENDANTS to prove that there was an
actual or constructive delivery of the |
property by which the adverse claim
ant got the actual or constructive pos |
session of the land from the prior oc-
cupant.'
The defendants excepted to the in
struction which they claim to have been
erroneous on the ground that High and
Pratt were Widemann S tenants whose |
possession was his possession and that
when he transferred his possession to
Mrs. Macfarlane the continuity of pos
session was never broken for an in
slant between them. McNeely VS..