The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-11-16

l courses and distances and extends i
| dotted lines the side boundaries to tn
water and connects them with waV
| lines marked the sea and marks tn
| space between those lines and III
| lower course and distance line tn
| beach, which space also is shown b.
| the evidence to cover land below higl
| water. Held, the title extended TO low
| water.
| "A deed describing the land as abov
| without the diagram but adding witt
| the right of extension To low waite
| mark carries the fee to low waite
mark
"A deed conveying land described BY
courses. distances and monument:
which would carry it 70 the upper side
OF road running near the shore. 'ant
also the sea beach in front of the
same down to low water mark is hello
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 anC
lew water marks
THE rule that accretion should be
divided between adjoining proprietors
SO as to give them new shore lines
proportionate with the old is not OF
universal application-as. fer instance,
when there is a 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 a former trial of the case by a
witness temporarily absent from the
fri ie ha1
harmless, if erroneous, because if all
the evidence on the point testified to
can alleged break in the alleged ad-
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.
M oreover. this was not a case for
lacking.
can instruction that the jury should
find against the defendants on the
issue of adverse possession unless they
were satisfied by a preponderance of
evidence that the defendants have
clearly proven adverse possession etc,
is not erroneous.
when for a long period a plaintiff
in ejectment 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 they
may or should presume a deed to the
defendants predecessor in order to
quiet their possession and solve the
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 a 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
are shown to be in possession to high
water at least, little evidence is re-
quired 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.
cit is not sufficient ground for a new
trial that the trial Judge, in overru1-
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
were published in the newspapers and
read by the jurors before the case was
submitted to them and were referred
e and read by them after the retire
mt, although they had been instruct |
I'd not TO be Influenced by them-the |
tcfendants. moVants for the new trial |
having consented previously that the |
Crors might read the newspapers and |
asked the judge not TO order them not |
o read them and stated that they. the
defendants. were willing to take their |
:hances.
The erroneous admission, in oppo-
ition to motion for q new trial, of |
ftidavits of jurors, to the effect that
hey would have needed the admoni-
ion of the court, if given, not to read
ertain newspapers, to their reading of
which counsel consented, and that they
we're uninf1uenced by the publication
herein of certain remarks of the court |
fas harmless, for the reason that thev
id not affect the decision of the court
n the motion and the decision was
light irrespective of the affidavits"
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BRnAnFn RTAFr