11 Haw. 350 | Haw. | 1898
OPINION OF THE COURT BY
Tbis is entitled a “bill to remove a cloud, to estabbsb boundaries and for an injunction.” There are allegations and
Is the bill sufficient, either as a bill to remove a cloud or as a bill to establish boundaries? This is the question to be decided. Of complainants’ counsel one seems to regard the bill mainly as one to establish boundaries, looking upon the removal of a cloud chiefly as a result of the settlement of the boundaries, while the other lays special emphasis upon the removal of the cloud and treats the settlement of the boundaries chiefly as a result of the removal of the cloud.
Let us treat the bill first as one to establish boundaries. It appears that complainant Anna dos Anjos Perry holds in trust for herself and her children, also complainants, the land of Wailupe, in the District of Kona, Oahu, adjoining on its east side the land of Niu owned by the defendant Mary Lucas, and that the survey, Land Commission Award (No. 802) and Royal Patent (No. 52) of Niu are of earlier date than the survey, Award (No. 6175) and Patent (No. 4498) respectively of Wailupe. The complainants seek to establish the boundary between these lands and pray that the boundary may be decreed to be that set forth in the bill by courses, distances and natural monuments and claimed to be the correct boundary, — which is substantially the same as that set forth in the Patent of Wailupe.
Two grounds are relied upon to give equity jurisdiction. The first is that the western boundary of Niu as described in its Land Commission Award and Royal Patent is, as alleged, “incorrect, uncertain and defective to such an extent as to indicate
As to this ground, it is to be noticed that the description in the Niu Award and Patent is not set out in the bill so that the court may judge for itself whether the boundary as there described is “incorrect, uncertain and defective,” and that, too, though the allegation that such boundary is “incorrect, uncertain and defective” is shown to be merely an inference from such description. There is no allegation that the survey is impossible. The allegation of uncertainty and defectiveness, even if it could be taken as an allegation of fact and not a mere conclusion of law, is deprived of whatever force it might otherwise have by the further allegation that the boundary purports to extend into the land of Wailupe and includes a portion of it as a portion of Niu, thus showing an intelligible plain description. It is evident that, of the allegations in this part of the bill, the one relied on is that the boundary as described in the Niu Patent is incorrect and not the true boundary and includes part of Wailupe. But this is merely an allegation of an overlap, or that both Patents cover in part the same land. A bill to establish boundaries does not lie to remedy a mistake of this kind. A bill to remove a cloud or a bill to reform a Patent might lie in such a case under certain circumstances but not a bill to establish boundaries.
Further, except in so far as the Niu Patent covers part of Wailupe, we fail to see how the owners of Wailupe are concerned with the description in the Niu Patent. The description in the Wailupe Patent is independent of the description in the
The other ground relied on to give equity jurisdiction to establish the boundary is that the defendants, as alleged, “with a reckless disregard of the rights” of the complainants, “cut away considerable portions of the ledge of rock surrounding and overhanging the spring called Papalea,” and dug “a large hole in the ground near and above said spring, so that any boundary marks that may have previously existed at the places so dug into or cirt away have been defaced and lost; and thereby made it impossible to ascertain the existence and locality of a certain mark of a cross mentioned in the survey of said land of Niu, on which the Royal Patent therefor was based, and which said mark, if ascertained, would determine whether the survey of the easterly boundary line of plaintiffs’ said land of Wailupe, ending as its description shows at The sea at a spring of water called Papalea’ coincides with the earlier survey of defendants’ said land of Niu beginning as its description shows at a rock marked X at makai south-west corner of this land
The substance of these allegations is that defendants with reckless disregard of complainants’ rights removed a boundary mark if any existed. It is not alleged that any mark existed. The mark is mentioned in the Niu survey only. It is not clear that the mark, if ascertained, would show, as alleged, whether the eastern boundary of Wailupe coincides with the western boundary of Niu, or that it would establish the true boundary between these lands. If the description of the boundary in the Niu survey is untrue, uncertain and defective, as alleged, the ascertainment of the mark which is mentioned only in the Niu survey, would be of little, if any, value. If, on the other hand, that description is true and certain, the boundary would coincide with the boundary as described in the Wailupe survey, if that is true, as alleged, in which case the owners of Wailupe would have nothing to do with the existence of a mark not mentioned in their survey. It is not shown or alleged that the true boundary cannot be ascertained without ascertaining the existence or location of the mark in question, or without the assistance of equity. That such an allegation is necessary see Story, Eq. Jur., Sec. 620; Nye v. Hawkins, 65 Tex. 600. On the contrary, so far as appears, the complainants’ survey is sufficient in itself and no monument mentioned therein has been disturbed.
But aside from the question of the importance of the existence or location of the mark referred to, the mere removal of the mark although with a reckless disregard of complainants’ rights would not give equity jurisdiction. It is well settled that a mere confusion of boundaries or destruction of boundary marks, although occasioned by the acts of the party complained of, is not sufficient to give equity jurisdiction. The remedy, if any, in such cases is at law. To give equity jurisdiction there must be some special equity, such as fraud; or a relation between the parties which makes it the duty of one of them to preserve the
Now taking tbe other view — that tbe bill is one to remove a cloud, it is alleged merely that tbe defective and uncertain boundary line as described in tbe Niu Patent and Award is a cloud upon tbe title of "Wailupe, and tbe prayer is that that
The decree of the Circuit Judge dismissing the bill with costs is affirmed.