25 Haw. 726 | Haw. | 1921
OPINION OF THE JUSTICES BY
This cause is here on a submission. The agreed facts briefly stated are as follows: In December 1912 the plaintiff Mary E. Foster was the owner of approximately 9/10 of the shares of the hui of Kahana, Island of Oahu; L. L. McCandless was the owner at that time of 1/16 of the shares of the said hui. The hui lands are situated at Kahana, Oahu, and comprise 5267 acres of land extending from the summit of the Koolau range to the sea on the windward side of Oahu. This tract is covered by L. C. A. 8452, Ap. 2, R. P. 4387 to A. Keohokalole. At the date above mentioned the said L. L. McCandless was the owner of lands and interests in lands in the ahupuaa of Waikane and elseAvhere in that vicinity a few miles to the southwest of Kahana. The defendant, the Waiahole Water Company, Limited, entered upon an enterprise to acquire Avater and water-rights on the windward side of Oahu where there was an abundance of water and to convey the same through and across the mountains to the arid lands on the leeward side of the island. Pursuant to this plan the water company on December 21, 1912, obtained from the hui of Kahana a lease at a rental of $40,000 per annum to run for fifty years from the date water should be delivered through the tunnel to or in
We thus have three instruments to deal with, the first of which will hereafter be referred to as the Kahana
The Waiahole Water Company (which we will refer to as the water company) has under the provisions of the Kahana lease been required to pay the rent reserved to the lessees therein, to wit, the sum of $40,000 per annum since May 27,1916. At the same time it has claimed and still claims that having purchased the interests of Mr. McCandless in the hui water and water rights demised in the Kahana lease it is entitled to withhold its proportionate share of the rent hereafter to be paid by it and to have returned its proportionate share thereof paid since May 27, 1916, and which has been impounded by agreement of the parties pending the outcome of this proceeding. We have therefore before us the following-questions which have been reserved for our decision:
“(1) Whether said indenture of December 30, 1912, was effectual to grant or convey to said Waiahole Water Company, Limited, the waters, water rights and other rights or easements, or any of them, purported to be granted or conveyed by said indenture, notwithstanding that at the date of said indenture of December 30, 1912, said Mary E. Foster was and ever since has been and now is a cotenant of said land and as such cotenant now questions the validity of said indenture of December 30, 1912, and desires the same to be held void, as to said waters, water rights and other rights or easements.
“(2) Whether said Mary E. Foster, a- cotenant, is estopped from asserting as such cotenant, the invalidity of the grant of said waters, water rights or other rights or easements by the fact of said indenture of March 7, 1916, from said L. L. McCandless to her.
“(3) Whether said indenture of March 7, 1916, was effectual to grant or convey to said Mary E. Foster the shares, parts of shares and undivided interests in said ahupuaa mentioned in paragraph V hereof, as formerly owned by said L. L. McCandless together Avith said*730 waters, water rights and other rights or easements pertaining to or in respect of the same, notwithstanding said indenture of December 30, 1912, and not subject thereto, and free and clear of the rights and title claimed by said Waiahole Water Company, Limited, to have been acquired by it under said indenture of December 30, 1912.
“(4) Whether said Mary E. Foster or said Waiahole Water Company, Limited, is entitled to the proportionate share of the rentals payable under said indenture of December 21, 1912, in respect to the waters and water rights and other rights or easements pertaining to or in respect to said shares and parts of shares or undivided interests so formerly owned by said L. L. McCandless.”
The term “hui,” as employed in local parlance, denotes a tenancy in common. This court has already defined the status of the hui of Kahana as follows: “The Hui of Kahana as such is not a legal entity. It is neither a corporation nor a partnership. The title to its lands is not in a trustee for its use and benefit but is held in undivided interests by the members themselves as tenants in common.” In re Taxes Hui of Kahana, 21 Haw. 676, 678. There can be no question of the validity and purpose of the Kahana lease. This lease was executed by all the members of the hui through duly authorized agencies.
Counsel for Mrs. Foster maintain that the first and second questions above should be answered in the negative and that the third and fourth questions should be answered favorably to Mrs. Foster, and in support of their position they contend: “First, that the deed of December 30, 1912, did not purport to, and could not convey more than was left unconveyed by the lease of December 21, even assuming that the small cotenant could convey something with respect to water rights and easements appurtenant to the lands of the cotenancy. Second, that it is a thoroughly established rule of law that a cotenant cannot convey easements with respect to the
By the terms of the Kahana lease the water company acquired the right for the term of fifty years from and after the 27th day of May, 1916, to divert, take and carry away all of the water of or appertaining to the ahupuaa of Kahana above the level of 774 feet in excess of such water as would he necessary to irrigate the lands below the point of intake which in no case should be less than 774 feet above sea level, which lands were entitled or
It seems to us that the graver question involved in this case is, Was the attempted conveyance by Mr. Mc-Candless to the water company of his undivided interest in the water rights appurtenant to the common property void under the rule relied upon by counsel for Mrs. Foster and announced in Goddard on Easements pp. 93, 94,
Counsel for Mrs. Foster invoke the rule upon two grounds. First, because such a transfer involves the conveyance of an easement and of itself amounts to an interference with the technical rights of the other cotenants, and second, because such a conveyance is an attempt to set aside and partition a part of the common property of' the cotenancy and thus is an encroachment upon the rights of the other cotenants. Of course if the Kahana deed interfered with or transgressed the rights of the other cotenants it would not he valid as to them but under the circumstances of this case we fail to comprehend how their rights are detrimentally affected by the transfer from Mr. McCandless of his water rights in the ahupuaa to the water company. The water demised by the Kahana lease is properly termed ahupuaa, konohiki or surplus water and was never appurtenant to any particular part of the land and is thus distinguished from prescriptive or riparian water rights. It is this class of water which originally the chief or konohiki could dispose of at will irrespective of the rights of the other owners and tenants upon or within the ahupuaa in the prescriptive or riparian waters. Haw'n. Com. & Sug. Co. v. Wailuku Sug. Co., 15 Haw. 675.
And the record before us shows that the members of the hui, who were the owners of the cotenancy, by virtue of the Kahana lease separated the konohiki water rights from the lands of the ahupuaa — a situation which has already been recognized by this court in Re Taxes Waiahole Water Co., 21 Haw. 679, 682, where the court said: “There is no illegality or error in assessing the water
The cbtenants themselves have therefore created out of the common property an easement in gross which they have recognized and dealt with as separate and independent property and we cannot conceive of any sound reason why any one of the cotenants might not transfer his interest in the easement thus created to a third party by a deed which is valid at least during the life of the easement. Of course at the expiration of the lease the easement would terminate and the water and water rights would revert to their former status. The validity of the deed as to those waters and rights would then depend upon whether it transgressed the rights of the cotenants not parties thereto.
The other water and water rights conveyed by the Kahana deed to the water company, but which are not included within the Kahana lease, to wit, the konohiM waters below the 774 foot level and the prescriptive waters belonging to the McCandless shares, are in a different status from the leased waters by reason of the fact that they have not been separated from the other property of the hni by any act of the members of the cotenancy, but it seems to us that the conveyance of those waters from McCandless to the water company must be held to be valid as between the parties to the deed and voidable by the nonassenting cotenants to the extent only that they may show that the transfer would be prejudicial to them. Mrs. Foster has made no such showing.
In the submission the parties have stipulated that this proceeding shall be considered so far as may be in the nature of a suit in equity to quiet title or to remove a cloud from a title, etc., or any other appropriate suit or proceeding in equity.
Viewed from every angle all the equities of the controversy repose with the water company. Mrs. Foster
Our theory of the law hereinabove expressed, as applied to the facts presented by the record herein, necessarily establishes the right of the company to have refunded to it all rents which it has paid under the terms of the Kahana lease since the date of the Kahana deed in respect to water and water rights and other easements pertaining or in respect to the shares or parts of shares in the hui of Kahana formerly owned by Mc-Candless and conveyed by him to the water company by said deed and further establishes the right of the water company to be relieved from the payment of any further rents in respect to said water and water rights. And we further hold, in the absence of any showing by Mrs. Foster of any encroachment upon her rights by reason of the Kahana deed, that said deed is valid and effectual to convey the water and water rights and other easements pertaining or in respect to the shares and parts of shares formerly owned by McCandless and conveyed by him to the water company under the terms of said deed.
These conclusions render it unnecessary for us to deal with the doctrine of estoppel presented in paragraph 2 of the reserved questions except that in this behalf it may be said that as Mrs. Foster’s deed from McCandless was made expressly subject to the provisions of the Ka
The four questions propounded are therefore- disposed of as follows:
Question No. 1 is answered in the affirmative.
Question No. 2 is not answered.
Question No. 3 is answered in the negative.
Question No. 4 is answered as follows: The water company is entitled to the proportionate share of the rentals payable under the lease in respect of the water and water rights pertaining to the McCandless shares.
It should be stated, however, that the answers to the foregoing questions are based upon the record before us and must not he taken as finally determining or establishing the rights of the parties in the waters of the cotenancy.
A decree will be made in accordance with the views herein expressed.