The Hawaiian gazette., 1906-11-27
AN IMPORTANT DECISION
ON ADVERSE POSSESSION

I by Mr.. Widemann to his daughter dc.
scribes the leased premises ~ metes
and bounds. Delivery of TIE premises
under that lease would not be con.
structive delivery of the Okuu land
WITHIN the enclosure although not with
IN the boundaries of the Bishop land.
The only evidence which has been
| pointed out to us or which we have
been able to find in the transcript
which refers to the transfer of POSSES
sion of the disputed land is Mrs. Mac.
1arlane s evidence that she acquired il
from her father in 1895. The express
SION that she acquired the premises
from her father is conclusion of law
rather than statement of fact and
would not have authorized the infer
ence that anything more was intenl-
ed than that as matter of law .he
transfer of the leasehold was a trans
fer of all the land within the fence.
In this meaning of the language used
there was no evidence of delivery of
possession OF the disputed strip and no
PROOF of continuity of its possession
from the time that it was given up
by Widemann s tenants, High and
Pratt. That Mrs Macfarlane's remark
that she acquired the premises from
her father referred to the effect which
she attributed to the assignment to
her of the leasehold and to nothing
else is evident from her testimony that
her father, after 1898, when he called
her attention to Nina IS mistake in
making the fence on the wrong line
and to his claim of adverse possession
outside the line, said nothing to her
about the strip. The facts are similar
to those in Ryan VS.. Schwartz, 81 Wis.
w hn
presumption can be INDUCED in on this
p subject. The defendants wholly fail
ed to show any such transfer of pos
session of the strip in dispute as would
enable them to tack the previous pos
session of Pratt and his heirs, if ad-
verse, to their possession, in order to
make out the statutory bar
Mrs. Macfarlane's possession which
she acquired by the delivery to her of
the assignment of the lease was con
fined to the 1casehold At the date
of the assignment the statutory limita-
ton of actions to recover possession of
land was twenty years and the then
uneXpired residue of the term of the
lease was about seven years. If when
Mr.. Widemann assigned the lease he
meant to transfer the Okuu land in
order that it's continued possession by
Mrs. Macfarlane for eighteen years
longer to comply with the statute then
in force might secure to her title
by adverse possession in the Okuu land,
while written evidence of the transfer
was not requisite it was essential that
he actually should make transfer AS
this does not appear to have been done \
Mrs. Macfarlane' g taking possession of
the land was a separate act of disseisn
on her mart. Both Widemann and Mrs.
Macfarlane were in possession without
right and were strangers to the Okuu
title. In respect of that title there was
no privity or succession of relation
ships created by deed or. other act or
by operation of law H. Steel Co.
VS.. Budzisz, log Wis. 400 The mere
fact that one of them succeeded to the
other in the possession of this land
raises no presumption of privity be-
tween them. LucN VS.. Tenn, etc, X.
Co.. 80 Ala. 246. 8 So. SO6.
As we are unable thereto to find
any evidence of actual transfer of the
possession but merely delivery of the
deed of assignment of the lcasehold
accompanied by taking possession of
the land in dispute verdict, if given
for the defendants, could not have been
sustained. In this view of the ease
consideration of the other exceptions is
not required.
Exceptions overruled.
w. +. FREAR,
ALFRED S. HARTWELL,
j. 7. DE BOLT.
A. G. M. Robertson for plaintiff; A.
Lewis Jr. (Smith e. Lewis on the brief)
for defendants.