21 Haw. 609 | Haw. | 1913
OPINION- OP THE COURT BY
Tbe plaintiffs (defendants-in-error) brought an action in the circuit court against the defendant to recover rent alleged to be due and unpaid under a lease of certain land situate on the Island of Hawaii. The venue was changed from the third to the first judicial circuit and the case was tried jury waived. The claim was for $1113 for unpaid rent accruing during the period from March 1st, 1902, to September 1st, 1905. The defendant pleaded the general issue, and at the trial claimed an eviction on the part of the plaintiffs, which, it was contended, relieved her from the obligation to pay the rent. The circuit court found against the defendant’s claim, and judgment was entered for the plaintiffs for the amount asked together with interest and costs aggregating the sum of $2026.09. The plaintiff-in-error seeks to have that judgment reviewed.
It appears that the lands known as Holualoa 1 and 2, situate in the district of North Kona, Island of Hawaii, were purchased many years ago by a Hawaiian hui composed of about seventy-five members, the original number of shares being 400 which subsequently was reduced to 353 through the retirement by purchase or otherwise of 47 shares. At the time of the execution of the lease in question the plaintiff, Elizabeth K. Pilipo, owned 56 of the shares, subject to the dower interest
The plaintiffs and the defendant executed.an indenture dated August 21, 1894, whereby, the former demised to the latter “fifty-three (53) shares out of their’fifty-six (56) shares undivided of the land of Holualoa, in North Kona, Hawaii * * * but excepting and reserving therefrom to the lessors in the portion of the land makai of the upper government road, three (3) undivided shares of their fifty-six (56) shares, which said shares shall contain a house-lot near the sea adjoining the kuleana of H. N. Kakulu deceased.; also the houses, pineapples and coffee planted by the lessors adjoining the new road running from Kailua mauka on both the upper and lower sides of said road; also other plants or trees planted by them; also the Koa and Ohia forest trees in the forest, excepting such as may of necessity be cut for the purposes of agriculture of the lessee, -x- -x- * * rp0 pave arL¿ to hold the said fifty-three (53) shares undivided * * * * for thirty years from and after the first day of September, A* T>. 1894 * * *.” The lessee covenanted, among other things, that “in entering upon the land makai of the upper government road not to enter or interfere with the parcels of the said land now occupied by members of the hui (hoa aina) either as house-lots or agricultural purposes in places heretofore planted by them,” and “that if the said land of Holualoa shall be divided between the several share-holders during the term of this lease to exercise all reasonable diligence to secure for the lessors favorable locations for their said shares.” And there was a covenant on the part of the lessors
The members -of the hui were' tenants in common of the lands of- Holualoa in proportion to their respective ownerships of shares, so-called, each share representing-a 1/353 interest in the land: Upon the execution of the lease, and by virtue of it, the lessee became a tenant in common of the lands of Holualoa with the members of the hui, including Miss Pilipo, in the proportion that the interest demised to her -bore to the whole. We do not accept the view of counsel for the plaintiff-in-error that the lease demised to the lessee an undivided 53/353 interest in the- land clear and that all the exceptions mentioned in the lease were intended to be included in the three shares or inteiests which were not demised. We hold the proper com struction of the language of the lease to be that the lessors demised-53/56 of their interest in the common land but reserved and excepted therefrom the houses, pineapples and coffee planted by the lessors adjoining the Kailua road, meaning the land upon which the houses stood and upon which the pineapples and coffee trees were growing, also the other plants or trees mentioned, including the forest trees. The language purporting to except and reserve three shares in the land makai of the upper road which should include the house-lot near the sea was used loosely and inaccurately, for the three shares referred to were undivided interests in the whole land "and were not .included in the general description. An .exception in a deed or lease withholds from its operation" some part or parcel of the premises, which,' but for the exception, would pass by. the general description. A reservation is the creation ,of some new right issuing out of the thing granted, and which .did not exist before as an independent right, in behalf of the grantor or lessor. The three shares were not included in the demise and no statement that they were excepted or reserved was necessary
Soon after obtaining the Pilipo lease the defendant secured leases of individual interests from other members of the hui who had been cultivating portions of the agricultural belt, and acquired altogether 85 shares. The defendant then undertook to take possession of. a portion of that belt containing an area of about 71 acres lying between the upper government road and the Kailua road, bounded on the north side by the J. C. Munn land (L. O. A. 3660) and on the south by the Scott trail, by erecting fences on such portions of the boundary of the tract as were not already fenced and by posting a notice at each of the four corners of the tract. This area contained coffee trees in bearing and was valuable on that account. The defendant proceeded to clear off the guava and other wild growth. An allotment of the agricultural belt separate from the rest of the common land lying above and below it would give to each hui share a little less than- one acre. There was evidence tending to show
In order to constitute an eviction it is not necessary that there should be an actual physical expulsion of the tenant from the premises. Any act of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises may be treated as an eviction, that is, it must be something more than a mere trespass. Holt v. Waialua Agl. Co., 18 Haw. 360. But, strictly speaking, there can be no eviction from premises of which the tenant never acquired the possession. 24 Cyc 1130, “An eviction consists in taking from the tenant some part of the demised premises of which he was in possession; not in refusing to put him in possession of something which, by the agreement, he ought to have enjoyed. A tenant cannot be evicted from that which he never possessed.” Etheridge v. Osborn, 12 Wend. 529, 532.
The evidence showed that Miss Pilipo owned "a kuleana (L. C. A. 7746:1) containing 4.7 acres situated within and near the center of the tract which the defendant intended to take up, and Mr. Scott testified that Miss Pilipo expressly requested the defendant to occupy the land about the kuleana because she wished that upon the making of the contemplated partition of the lands her proportion of the agricultural land should be located adjoining her kuleana, and that the defendant acceded to her request. Miss Pilipo admitted that she had entertained the desire attributed to her but she denied having: made such request of the defendant. The circuit court found the fact against the defendant’s contention.
We i shall now refer to the four specific instances each of which is contended to have constituted an eviction of the defendant.
In 1899 .Miss Pilipo went into possession of a small piece of land fronting on the upper government road and situated within the .'Tl-acre. tract referred to, upon which she built a house. This action of hers is claimed to have constituted an eviction.- This point, like the two preceding, involved a question of fact which turned upon disputed testimony, and which it was the province of the circuit court to determine. Miss
The remaining point is that an eviction occurred by reason of the plaintiffs having interposed certain objections in the suit to partition the land. The facts, briefly, are as follows: In September, 1897, the defendant and her husband commenced a suit in equity for the partition of the lands of Holualoa 1 and 2, naming the members of the hui as respondents; the plaintiffs herein filed an answer in which they admitted the matters alleged in the bill of complaint and joined in the prayer for a partition of the premises; commissioners were appointed and reports were made to the court; a tract of 5189 acres above the upper government road was sold and a partial distribution of the proceeds was made; it^was proposed to divide a strip near the sea as well as the agricultural belt in kind among the owners of shares in the hui, and to sell the intervening section of kula land; much time was consumed in making surveys and maps and the matter was further complicated by reason of changes in the ownership of interests; on July 15, 1905, the commissioner sold the section last above mentioned in lots at public sale to various parties, and made application to the court for confirmation of the sales; this application was opposed on several grounds which were set forth in a paper filed on behalf of thirty-four members of the hui, among them being Mrs.
The non-payment of the .rent having been conceded, and the only defense relied upon having failed of establishment, the plaintiffs were entitled to judgment for the sum claimed. -The judgment is therefore affirmed.