2 Haw. 9 | Haw. | 1857
delivered the decision of the Court as follows:
This is an action brought by the plaintiff at the last term of this court to recover possession of a strip of land, about ten or twelve feet wide, by seventy feet in length, with damages for its wrongful occupation by the defendant. The parties waived a trial by jury, and submitted the case to the decision of the Court, with the understanding that judgment might be given during the vacation, as of the last term.
The strip of land in question is comprised within the boundaries of a lot, situated on the northeast side of Marin street, in Honolulu, awarded, by the Board of Land Commissionors, on the 15th of April, 1851, to Francis Jones, Rosalie Jones, and John C. Jones, heirs of Lahilahi Marin, under claim No. 810. Francis Jones died in 1850, having devised all his real estate, including his undivided interest in this lot, to the plaintiff, who by a decree of partition, made on the 23d of April, 1853, between him and Rosalie, became sole owner of said lot.
The first question to be determined is, has the plaintiff established his title to the strip of land in question? We think he has done so, conclusively. We have already stated how he became solely possessed of the entire interest in the lot which was formerly held by the three children of Lahilahi, of whom he is one, as tenants in common. The award to them, by the.. Board of Land Commissioners, of the entire lot, by metes and bounds, including the strip in dispute, being made without any reservation of, or counter-award for, any rights of the defendant, or any other third party, within those metes and bounds, is conclusive as 'to the title, against all the world. An instance of such a reservation and counter-award as is here indicated, will be found in the case of Kalama vs. M. Kekuanaoa and John Ii, recently decided in this Court, where the Land Commission, while adjudging that the Government owned the entire prem.. ises in fee simple, reserved for and awarded to Kailio a right’ of residence for life on one third part. (See Polynesian of February 28th, 1851.)
It is contended, however, on the part of the defendant, that
It is contended, on the part of the plaintiff, that the defendant lost his right to the easement which he claims by non-user, and that there is evidence sufficient to raise the presumption of an abandonment of the right on his part. It is not shown, says the plaintiff, that when Lahilahi built the two grass houses on the alley, in 1843, and walled up the end of it which communicated with Marin street, the plaintiff resisted the erection of these obstructions, or took measures to maintain his claim; on the contrary, it is proved that for a period of about five years, he ceased to enjoy the right of way, and it became extinct. If it appeared clear to us that the non-user for a period of five years had been voluntary on the part of the defendant; that he knew and acquiesced in the disturbance of his easement on the part of Lahilahi ; and that he failed, for so long a period, being under no disability, or absent from the kingdom, to assert his right by legal steps, we should be inclined to hold that the presumption of an abandonment on his part did arise, and that he had lost his right, particularly if the servient tenement had passed into the hands of a purchaser having no notice of the easement. But such is not the case. On the contrary, it is clear from the fact that, in 1845, the Chiefs in council appointed a committee to settle the renewed dispute, which committee re-affirmed defendant’s rights, that he did not acquiesce in the acts of Lahilahi, and that he had re-asserted his right of Avay. While it also appears, by the testimony of Mr. Metcalf, that in April, 1847, defendant still had a gateAvay opening into the alley, which his son unlocked to let Mr. Metcalf pass through, for greater convenience in making the survey of the premises, and upon Mr. Metcalf’s enquiring why he kept the gate locked, he answered, that he did so to prevent the passage through his premises from being made a thoroughfare. We think it is clear, therefore, that defendant has neither lost, nor abandoned Ms right of way, and that it is a good, subsisting right at this day.
The last question.to be considered is, as to the amount of damages, which the plaintiff is entitled to recover, for the ■wrongful dispossession. In our opinion, the actual value of the strip of land in question to the plaintiff can be but small, so • long as the defendant has a right of way over it. The only way in which, it would seem, plaintiff can derive benefit from it, is by the use of it as a passage through the centre of his lot, thus facilitating the egress and regress of tenants on the maulca part of it. It does not appear that, even in this way, plaintiff could have derived any benefit from it heretofore, and therefore we think he is not entitled to recover any thing beyond nominal damages. It is claimed that he is entitled to recover his reasonable expenses, for counsel’s fees, and other disbursements,
Our judgment is, that the land in dispute belongs to the plaintiff, but that the defendant has a right of way over the same ; and that plaintiff recover possession of the land, with one dollar damages, and the costs of this suit.