27 Haw. 609 | Haw. | 1923
OPINION OP THE COURT BY
This is a suit in equity. The main allegations of the hill are: that the complainant is the owner in fee simple of a certain piece of land described by metes and bounds; that on said premises are sixteen houses owned by the complainant and used and occupied by lessees of the complainant; that the respondent Sakagi “claims to be the lessee” of a certain parcel of land adjoining that of the complainant and situate between the latter and a public street known as Park street; that for ten years and more prior to the institution of the suit complainant and her predecessors in title and those under her “have had, possessed and used a certain easement and right of way over and across” the land claimed by Sakagi as lessee; that
It will be unnecessary to consider whether the very allegations of the bill showed that while in form it was a suit in equity it was in essence an action of ejectment to try the title to the alleged easement and to eject the respondents from the way claimed or whether upon this theory the demurrer should have been sustained. The answer certainly places it beyond any doubt that the issue between the parties was purely one as to the title to the easement and that although in form this is a suit in equity it is in reality an action of ejectment to secure the removal of the respondents and their building from the alleged way. The complainant in her bill alleges that she is the owner of this right of way and that she acquired it by adverse user for more than ten years. The respondents in their answer deny that there is any such easement appurtenant to her land and that the complainant ever acquired one by adverse user. The respondents admit in their answer that when enjoined they were erecting a building which was intended to cover and would have covered the whole of the alleged way and asserted that if the temporary injunction had not been issued they would have completed the erection of this building. The only issue left was as to the title to the easement. The court of equity had no jurisdiction to try this issue and the respondents are entitled to have it tried at law before a jury. The proceeding is devoid of any equitable features. It is true that when, as in Kuala v. Kuapahi, 15 Haw. 300, the “case is not without traces of equity jurisdiction” or when, as it is sometimes expressed, “the case is not wholly foreign to equity jurisdiction” or “when it is not on its face such that equity could have no jurisdiction over it” or “when the defect is a want of equity and not a want of power” or “when equity is competent to grant