16 Haw. 728 | Haw. | 1905
OPINION OF THE COURT BY
This was a bill in equity to restrain the respondent from obstructing a highway in Honolulu from King street to the rice mill of Y. Ah Hin by a fence cutting off a portion of the highway “150 feet in length and varying in width from ten feet to fifteen feet.” The judge in dismissing the bill said: “The evidence shows in this matter that there has been some sort of way for 'a great many years, perhaps since about 1865 or 1866, but it does not very clearly show the location of the road, nor the width, except as to the use of it.” After remarking that the width of the Achi lane “which is that portion of the road lead
The plaintiff’s brief claims that “evidence showed that for many years the way had'been traveled and accommodated two or three hundred people; that it was used for carriages and foot,” that before 1888, although it had not been worked, it extended ten to fifteen feet from the present fence to the old posts and was twenty-five to thirty feet wide. In 1885 Achi and others widened the road below with respondent’s consent, raising it about three feet and grading it about twenty feet wide. Ah Hin graded the road six or seven times and in 1890 respondent joined in his petition to the legislature to reimburse him for that work. About that time the railroad laid a track, partly on the graded portion and ¡3artly beyond, and for a short time occupied it. After the tracks were removed the road was traveled its full width up to the posts, although the evidence varies as to where most of the travel was. In 1904- the respondent built this fence, enclosing a large portion of the traveled portion of the road, leaving a road space from seventeen to twelve feet wide. Two teams could pass before the fence was built, but cannot now pass at all places.
It is the contention of the plaintiff that the above statement of facts is supported by undisputed testimony, and that as the
We do not feel at liberty rrpon the showing now made to set aside the decree appealed from, which is accordingly affirmed, but without prejudice to the plaintiff’s right to bring such further proceedings as shall be advised.