Heirs of Jarrett v. Kapena

| Haw. | Apr 30, 1881

Opinion of the Court by

Judd, J.

This case comes up by appeal from the Commissioners of Private Ways for Honolulu, concerning a lane leading in the rear of defendant’s premises to Nuuanu avenue.

W e have examined the testimony and find that the use of the lane in controversy by the late Wm. Jarrett and his family, was by tbe permission of the' defendant’s father. It is quite clear that a permissive- use will not create an easement, however-long-enjoyed. The defendant, therefore, had a right to revote- the permission- and to obstruct the- lane. The plaintiffs cannot claim the- use of this lane as a necessity, as there is a convenient roadway from the plaintiff’s premises to Fort street.

Castle & Hatch for plaintiff's. J..L. Kaulukou for defendant. Honolulu, April, 30, 1881.

We find, however, by the survey' produced of the- defendant’s premises, that the lane is only partly on defendant’s land, and it is partly on the adjoining land claim of Keekapuv The defendant has only authority to- obstruct the lane só far as- it Is over his own land;

The judgment of the Commissioners is reversed, but the defendant must remove the obstructions to the lane so far as he has placed them beyond the boundaries of his own land.

Each party to-pay/his-own costs and. costs-of. Court divided,