The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1908-04-06
LAND CASE WON
BY JUDGE HAPAI
CONTINUED from Page one.j

tivated almost all of the land with ba.
nanas, pineapples, coffee, flowers, vege-
tables and fruit trees. He has always
kept caretaker on the premises His
intention was to make the pace his
home and to live there all OF the time
when his work did not necessitate mis-
presence in Hilo. All his savings went
toward improving the place, In 1906,
after the application for patent, he
voted in Olaa, previous to that time
voting in Hilo. If all of the times the
place was occupied by plaintiff, his
wife and family were added together
it would make about two years.
Plaintiff is entitled to patent il, as
the statute provides, he has resided on
the land not less than two years am
has substantially performed all OF the
other conditions of his lease, the only
other condition in this case which ia
claimed was not fulfilled being the one
that "the lessee shall from the end OF
the first year of the said term to the
end of the fifth year thereof eontinu-
ously maintain his home on such pre-
mises.' 1t will be observed that that
condition in the lease cannot be per-
formed to its full extent by a lessee
who shortly after the third year OF his
term applies for patent, otherwise no
could not get a patent until after the
fifth year of his term. SO that, so far
as the right to a patent is concerned,
If the lessee has resided on the land for
not less than two years, it is imma-
terial to inquire whether the condition
as to continuously maintaining a home
thereon has been carried out. This rs
also shown by the statute requiring as
prerequisites to obtaining a patent a
residence on the land of not less than
two years and substantial perform
ance of all other conditions Of the
lease, To reside on certain premises
and to continuously maintain a home
thereon do not mean the same thing,
as a person may do either one without
doing the other.
All that is necessary to decide in this
case, however, is whether plaintiff has
resided on the land for not less than
two years. The contention Of defend
ant is that plaintiff, in order to pre-
vail, must show that he has maintained
on the premises for not less than two
years permanent and fixed abode with
the present intention there to remain.
Even if this contention goes too Tar,
plaintiff has shown by undisputed evil
dence all that is required by IL. That
plaintiff also maintained a home in
| Hilo, where he lived when absent on
} business from his Olaa place, is not sur.
ficient in this case to show q noncom-
pliarce with the statute, whatever lite
effect might be in some other case In
so far as the conclusion depends upon a
question of fact, the finding OF the ci;-
cult judge is in favor of plaintiff, AMI
while that finding is not binding on
this court it is certainly entitled to
weight. We may add that, il 1t ap-
peared in any way, as it does not IN
this case, that the compliance with the
condition as to residence was not ma1e
in good faith, a different conclusion
might follow.
The decree appealed from is affirmed
c. F. Clemens, Thompson Il Glenn
ons on the brief, for plaintiff. w. L.
Whitney, Deputy Attorney General 20
r. Hemenway, Attorney General, also
= on the brief, for defendant.