The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-02-12

BY unanimous opinion, written by
Justice Wilder, with whom Justice
Hartwell and Circuit Judge De Bolt
sign, the decree of Judge Robinson in
favor of defendant in the injunction
suit of Oahu Railway & Land Co., Ltd,
V. James Armstrong is reversed and
the case is remanded to the trial judge
for such further proceedings as may
be proper, not inconsistent with this
opinion. r. B. Anderson, with Ballou
q Marx on the brief, for plaintiff, and
A. ". M. Robertson for defendant
1t was an action to restrain Arm
strong from laying water pipe and con-
Quoting water across Lehua avenue at
Pearl City to a piece of land he had
first leased and later purchased from
the railway company.
The appellate court finds that Arm
strong had a complete right to the
easement in question, but that he had
not exercised it legally, in that he had
not obtained permission from the COM
pany for the manner, mode and Ioca-
tom of conducting the water.
In the case at BAR the opinion
says, that there has been substan-
tial charge we have no doubt. The
method of use, the dimensions and Ioca-
ton have been substantially altered.
That these changes may have benefited
the servient estate is immaterial.''
Another point found against the re-
spondent is that Mr.. Denison, super
intendent of the railway, was not shown
to have had authority TO give the oral
permission that the respondent testified
he gave, but of which Mr.. Denison tes-
titled he had no recollection, for max
ing the alterations in the Watercourse
If it appeared that Mr.. Denison had
the authority to give such consent as
would bind the plaintiff. company" the
opinion reads, I'VE would be inclined
to hold from the evidence that he gave
it,
The law of the case is thus con-
densed in the syllabus:
Zone with knowledge, though not a
surveyor, is competent to testify
whether certain lands are included
within the description of a deed.
"A deed of land by a lessor to his
lessee, together with all improvements,
privileges, rights, easements or appur-
tenances to the same belonging or APP
pertaining or held and enjoyed there |
WITH to which land at the time of
ing conveyed across and under other
land of the lessor, grants an ease
ment to take such water across such |
other land substantially in the same
manner, mode and location.
"A change in the method of use, di- |
mansions and location of a watercourse |
over the land of another is a substan- |
tial one which cannot be made without |
the consent of the owner of the servi- I
ent estate.
"A superintendent of a railroad hav-
ing supervision of matters pertaining |
to the road bed, track and operation
of it's road has no authority to give
such consent"
OTHER APPELLATE CASES.
The Supreme Court denied the mo-
ton of P. L. Weaver for defendant in
the suit of DR.. G. w Forester against
A. M. HURT, for a rehearing on the
ground of mistake and error, mo mis-
take or error appearing
Holmes & Stanley for defendants in
the suit of w. A. Whiting v. Lee Tat
Sen, Tam Young, Lee Chun and Lee
Leu moved in the Supreme Court to
dismiss the appeal of plaintiff for fall
ure to comply with certain rule Of
the court. The motion was granted.
The Supreme Court has overruied the
exceptions of defendant in the suit of
Henry v. A. M. Brown. The
appeal was from Judgment for plain
Tiff for $1,000 on promissory note with
interest, costs, etc.
A contest of the estate of Hikoolanf
" Noholoa was submitted on BRIEFS
The Makee Sugar Co.'S appeal from
he Kauai Tax Appeal Courts decision
against it, in favor of Tax Assessor
Farley, for $73S4.80 taxes, was argued
IND submitted yesterday. !