The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-11-26

to publish the following judicial deci-
tant doctrine of adverse possession 1t
contains. 1t is in the case of Eliza
| beth X. Wilder VS.. H. K. Macfarlane
Jr. and Mary L. Macfarlane, heard on
exceptions from the First Circuit Court.
Circuit Judge De Bolt sat in place of
Justice Wilder, Disqualified:
Adverse possession.
Exclusive use of land fenced off by
| the owner under mistake OF her true
| boundary if continued for the statu-
tory length of time would bar an ac-
ton of eiectment 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 wears 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 a trans
fer of this strip of land, whether oral
or written, the taking possession OF IL
bv the defendants lessor was separ-
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 90 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,
devisees under the will of Okuu. This
title was shown at the trial. The de-
PENDANTS hold as tenants under Mrs.
F.. W. Macfarlane who claims that she
and her predecessor in interest, her
father H. 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
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 claim
of ownership in himself and adversely
to the owner of the Okuu land. .Ad
Joining the Okuu land is a wedge |
shaped parcel of land belonging to the
Bishop Estate which was leased to F.
w. Macfarlane November 1, 1888, for
term of fifteen years. This lease |
was assigned by Macfarlane to Wide !
mann in 1891 and was assigned by |
Widemann to Mrs. Macfarlane in 1895. |
The lease was never recorded and 1t !
does not appear that occupation was
taken under it until 1894 when High |
and Pratt entered into possession I'M
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 1905 the Bishop |
trustees conveyed the land to Mrs. Mac |
farlane. In 1898 Nina, one of the |
plaintiff s grantors, made a fence along |
a 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, 129
u. >. 69S, twas an acquiescence re-
sultlng from a 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
,luding, it may be added, pasturage
If horses. The use was not permissive
since the owner did not know that it /
vas her land that was being used.
Dlsseisin or custer may be implied from
AIdemann s exclusive use of the land
'enced off which, if continued for the
tatutory length of time, would have
'recluded the owner from maintaining
.jectment.
But the more difficult question to
nswer is whether Mrs. Macfarlane up
N succeeding to the Bishop leasehold +
n 1895 could claim the benefit of her