9 Haw. 191 | Haw. | 1893
Opinion of the Court, by
This is an appeal from the Commissioner of Private Ways and Water Eights for the District of Honolulu.
A way can be acquired by prescription only by adverse user for not less than twenty years. In the present case the two lands in question were owned by the same person, Waiaha, up to a time less than twenty years ago. And, although for many years prior to his conveyances he used the way now claimed, over one part of his land for the benefit of the other part, such user was not adverse, for no one can hold adversely to himself.
A way of necessity so-called is, strictly speaking, not created by necessity. It is created by grant or reservation. Ways are commonly said to be created by grant, by prescription or by necessity. But these distinctions relate to the mode of their proof rather than to the mode of their creation. It would be more correct to say that ways are created by express grant, by presumed grant and by implied grant— or reservation, as the case may be. In every instance the way is created by grant, or reservation, the difference being merely in the mode of proof. The question as to what is granted or reserved is a question of intention to be shown by
A way of necessity is merely a way created by an implied grant or reservation, the necessity being only evidence of the intention of the parties to make the grant or reservation. If it is not in the power of the grantor to create a way, no necessity however strict or absolute, can be evidence of an intention to do so, — as where the only means of access to the land is over the land of a stranger. But if it is in the power of the grantor, strict necessity alone is sufficient evidence —as where the only means of access is over the land conveyed or reserved by the grantor. And even where there is not a strict, but only a reasonable necessity, as where some other way is possible though very difficult or expensive, this, if coupled with additional evidence of a way actually used and which is apparent and of a continuous nature, has been held to be sufficient evidence of an intention to grant or reserve the way.
The same rules which apply to the existence of a way apply equally to its location, direction, width and the purposes for which it may be used. The question is merely one of intention, to be proved by competent evidence.
If the way is created by an express grant, which defines its location, direction, width and uses, the only evidence is to be found in the grant itself; but if the grant merely provides for the existence of the way, with no provision as to its location, width and uses, these must be ascertained by other evidence, such as the condition or character of the lands and the • uses made of them, or the acts or acquiescence of the parties. For instance, if a particular way for a long time prior to the conveyance and with the knowledge of the parties has been in actual use in a certain place, and of a cer
The appeal is dismissed, the plaintiff to pay the costs.