The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1907-12-16
ARMSTRONG MUST
REMOVE PIPE LINE
SUPREME COURT FINDS THAT THE
LOWER COURT WAS RIGHT IN
DECIDING HE WAS IN CONTEMPT

James Armstrong and the Oahu Rail-
way Company have been fighting over
a pipe line at Pearl City Armstrong
was ordered to remove the offending
pipe, when l.. L. McCandless stepped
in and stopped Armstrong, who then
claimed he could not carry out. the
order Of the court The judge prompt
ly decided that Armstrong was guilty
of contempt, which decision was APP
pealed from. the Supreme Court then
heard the case and this morning hand
cd down a decision, signed by Chief
Justice Hartwell, finds that Armstrong
is guilty of contempt and affirms the
order of the lower court
The decision follows:
Pursuant to the decision OF this court
%. r. & l.. Co V. Armstrong, Is Haw.
1851 the circuit judge, September 26,
1907, made a decree enjoining the de-
PENDANT under penalty Of being adjudg-
ed in contempt of court from maintain
ing certain pipe line across Lehua
avenue at Pearl City, so tar as the
same is within the limits of the plain
! tiff's land known as Lehua avenue, and
! from carrying water across said land
| through said pipe November 5, 1907,
the plaintiff filed in the cause the aft
davit of its secretary, Van Valkenberg,
setting forth that the pipe line had not
| been removed by the defendant in
! compliance with the decree. The judge
thereupon ordered the defendant to
| appear and show cause why he should
not be found guilty of contempt of
the order and injunction of said court,
and, after having heard counsel, adj
judged the defendants excuse for nom
compliance with the decree to be in
sufficient and adjudged him to be in
contempt of court in having failed
neglected and refused to comply with
said final decree of this court and that
he be hereby committed to the custody
! of the sheriff of the county of Oahu
until the terms and provisions of said
! decree shall be complied with or until
the further order of this court" The
defendant appealed.
The contention of the defendant is
that he is excused from complying
with the decree because prior to the
institution of the suit he had convey
ed to L. L. McCandless an undivided
one-half interest in the land to which
the water was conveyed through the
pipe in question and also had mort
gagged his one-half interest to the same
person. The cases cited for this con-
tentiOn hold that one is not liable to
be punished for contempt for failing
to do an impossible thing. Hogue "
! Hayes, So Ia 377; Johnson V. Yoemans
ct al, Al Ga. 1868; Cowart " Dunbar
| Sc Ga. AIS; Register v. State, Mimi
1856; Adams V. Haskell, Cal. BIG;
Worden V. Orange County Bank, /
| Wend. 80. But it is not impossible
for the defendant to cease to maintain
the pipe across the plaintiffs land.
If he should incur liability to his con-
tenant and mortgage by ceasing to do
that which he had no right to do in
the outset this would result from his
admission in his answer that he was
maintaining the pipe in controversy
and from his failure to plead non
joinder of McCandless so that the de-
cree should determine the rights of
both. The plaintiff might properly
have Joined MCCandless as a codefend-
ant but there is no rule requiring
| jOinder of tortfeasors the plaintiff hav-
ing proceeded against the defendant on
the theory, which was sustained by the
court, that the maintenance of the
pipe was a trespass.
! Hhe order appealed from is affirmed.