4 Haw. 207 | Haw. | 1879
Opinion of the Court by
This case comes before us on a bill of exceptions from the-Circuit Court of the Third Judicial Circuit, alleging that the-Justices of that Court by whom the case was-heard, the jury being waived, erred in holding that the facts shown did not make out the defense of a title by prescription.
The action was ejectment for a tract of 9 4-10 acres- of land in Hamakua, Hawaii, which, prior to defendant’s occupation five years ago, was unfenced and uncultivated, and not in the actual occupation of defendant's grantor, or of any person.
The plaintiff proved title to the land by inheritance from the patentee Kekoa, and to this finding no exception is taken.
We find, upon, a review of the testimony, that the occasional visits to the land by the defendant’s grantor, without residence or occupation, and her declarations, not brought to the knowledge of plaintiffs, that the land was hers, were not sufficient; and that the Circuit Court did not err in holding that the defendant had not shown title by prescription.
Judgment was given by the- Court for the plaintiff for the land with damages assessed at $ 100 for the entire period of defendant’s occupation and costs. The Court added that the question, of improvements was to remain open unless settled by the parties. It appears from the evidence sent up that there was some testimony tending to show that defendant’s house was partially over the boundary of the land in question, and that there was cane- planted by defendant which might turn out to be on this land. The testimony was not explicit, it being a matter of uncertainty as to where the boundaries of this land were with reference to the house and the cane, as the defendant had other land adj.oining. It is alleged that this-judg.ment is wrong, because it does not purport to be final.
The judgment of the Coui’t was final as to the possession of the land and the damages. The remark as to improvements was unnecessary, but it was perhaps made: in order to afford the defendant an opportunity to show more- accui’ately what improvements he had put on the- land which he could legally remove. • He not having taken advantage, of the opportunity afforded him to make a further showing while the Court was still in session, cannot now claim that the judgment is invalid on the ground that it indicated that there were other questions
Exceptions overruled.