Kamai v. Trask, 8 Haw. 75

Kamai v. Trask

8 Haw. 75 | Haw. | 1890

Opinion oe the Court, by

Judd, C.J.

This case comes to us by the defendant’s appeal from the Commissioners of Private Ways, etc., for the district of Honolulu.

It seems that on 6th August, 1869, one Keawekalohe, who owned a piece of land at Kakaako, Honolulu, (described in Land Commission Award, No. 3455), sold a portion of it to one Kailua and on the same day sold another portion of it to one James Wright. A lane was left between these two lots, and each lot was described in the deeds of conveyance as bounded *76by this lane. Keawekalohe still owned the rear portion of the land from which the lots sold to Kailua and Trask were taken, and had access to the street through the lane.

The plaintiff, J. Kamai, is the owner, by title not disputed, of the lot conveyed to Kailua. In 1877 Keawekalohe sold to defendant, Trask, all of his land described in Land Commission Award, No. 3455, which had not been conveyed to Kailua or Wright. His conveyance carried the fee in the lane to Trask. In 1883 James Wright conveyed the lot he had bought of Keawekalohe to defendant Trask and his wife. The lane continued open and in use by all these parties until 1888, when it was closed by defendant by his building a cottage upon. it.

The Commissioners of Private Ways were applied to to order defendant to re-open the lane, and after hearing the evidence they ordered the lane opened by defendant.

By the Court.

The Commissioners were right. The general doctrine is that “a grantor of land describing the same by a boundary on a street or way, if he be the owner of such adjacent land, is estopped from setting up any claim, or doing any acts inconsistent ■with the grantee’s use of the street or way; and such estoppel would also apply to his heirs, or those claiming under him.” Howe vs. Alger, 4 Allen, 211.

This doctrine is not extended to a grantor, merely intending b'y the description to fix the boundaries, he not having any interest in the soil of the street. Id.

We have no hesitation in adopting this doctrine.

In Pennsylvania it is held that when a grantor sold and conveyed lots, bounding them on an alley, he not only conveyed the use of the alley as appurtenant to the lots bounded thereon, but thereby dedicated it to public use. Transue vs. Sell, 105 Pa., 609.

Chief Justice Cooley, in Smith vs. Lock, 18 Mich., 59, says: “The purchase of the lot described as bounded on a street es-tops the grantor from shutting it up so as to prevent his grantee making use of it for his own accommodation in the enjoyment *77of his purchase. It is a matter of private right, and in no way depends upon the question whether the public have acquired a right of way or not.” See Parker vs. Smith, 17 Mass., 413.

W. 0. Smith, for plaintiff. W. 0. Achi, for defendant.

Appeal dismissed.