The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1909-12-16
is REFUSED
SUPREME COURT.

Inc p6UlJlOu VI pldluJlu lOI ISuSdl-
ing of sylvia VS.. Waikiki Sugar Co. is
denied in an opinion by the CHIEF
Justice from which Justice Perry dis
sents as he does from a concurring
opinion by Justice Wilder which states
as an additional ground for the con-
clusion reached, that there was only a
scintilla of evidence against the plain
tiffs' showing of adverse possession of
more than ten years. The opinion of
Chief Justice Hartwell reads as fol-
lows; i@ /
THE term ENTRY" used in the sta
tute refers to the common law extra
judicial remedy of one who is ousted
from his freehold, whereby to regain
possession.
The defendant having filed a petit
ment was requested upon the mean
ing and effect of Instruction IS, in
view of other instructions relating TO
the same subject and of. the ruling in
Kapiolani Est. v. Thurston, II Haw.
324, 1926; Notes V. U. S., ITS U. s.
800, and Fid. Nut. Life Assn. V. Met
tier, 1856 U. S. 800" (45S).
The instruction was as follows:
mo. IS. If you find from the evil
dence in the case that the defendant
entered upon the lands in dispute as
shown by the evidence or any portion
of them under claim of title, or deed,
that such entry was, in law, wrongful
unles such entry was made within the
period of ten years from the date the
title or right to such land was first
vested in the party making such entry,
the defendant, and within ten years
from the time the right to such land
accrued to the predecessor or prede-
cessors, if any, under whom such right
is claimed by the defendant"
The defendants attorney argued that
harmless error in ruling upon evidence,
as in cases above cited, and erroneous
instructions which cannot be regard
ed as offset or cured by correct instruc-
tions, citing Territory V. Richardson, II
Haw. 321, 326, in which case instruc-
lions applicable in an action for money
had and received were held not to be
cured by instructions appropriate to
the case, which was the trial of an in
dictment for ENLIGHTENMENT. 1t may
be that the opinion of the majority Of
the court in the present case states the
rule about conflicting instructions in
broader language than can be recon-
ciled with the ruling in Territory V.
Richardson. But this does not dis
pense with the necessity of cons
sidering whether the instruction IS,
above cited, may not be correct Ii
the term entry is taken in it's popular
; meaning of going upon ones land, an
instruction that ones entry upon his
land, when not dispossessed, more than
ten years after he acquired it., is
wrongful, would be not only prepos-
ferrous. but, as stated in the dissenting
opinion, equivalent to an instruction
to find in this case for the plaintiffs;
but if instruction Is may properly be
taken to mean that defendants entry
would be wrongful, made for the first
to make it first accrued, and if this
would be correct statement OF the
law, there would be no occasion to
consider the effect of other instruc-
lions.
But at common law entry was the
extrajudicial remedy for the wrong
done by ousting the owner of the free
hold, whether by abatement, intrusion
or disseizin and applies only in cases
when another person who hath nc
right hath previously taken possession
OF lands or tenements." Blackstone's
Conn., 1853, TIA. If the custer is eff
fected by discontinuance or deforce-
ment the owner of the estate cannot
enter but is driven to his action" lb.
It's. The remedy by entry, however
must be pursued "in a peaceable and
easy manner and not with force OF
strong hand" ID. 49, If this could
not be done the remedy to obtain pos
session was by writ of entry. Oul
statute of limitations, CHI. 1877 r. L..
part 2, entitled Real Actions was
taken mainly from the Massachusetts
statute, oh. 1876 Pub. Stat, which is
based upon the statute and Will
NV. C. 27 This is evident by. compar-
ing the English statute, found in the
appendix of = Angel on Limitations,
ed. with the Massachusetts and Ha-
waiian enactments. 1t is evident
that the term entry is used in ouI
own statute as we'll as in the Others
mentioned in it's common law mean
ing. .la a. - > -
section 1888 R. L., then, in requiring
that no person shall make an entry
upon any land unless within ten years
after the right to bring an action to
recover possession of it first accrued
, means that the entry must be made
/, / within tho TINA nannad and NOT after