
    KAWIKA et al. vs. PAKEOKEO.
    Appeal erom Commissioners oe Private Ways.
    January Term, 1885.
    Judd, C. J. ,• McCully and Austin, JJ.
    Plaintiffs’ lot and defendant’s lot were originally one piece; by division and sale to different parties, plaintiffs’ lot was left with no way to the public thoroughfare except through the portion sold to defendant.
    Held, affirming decision of the Commissioners, that plaintiffs were entitled to a right of way by necessity over defendant’s lot.
    
      Achí vs. Poní, ante 176, followed.
    
      W. It. Castle, for plaintiff.
    
      A. Rosa, for defendant.
    Honolulu, March 9, 1885.
   Opinion by

McCully, J.

Kig-ht of way. Appeal from the Commissioners.

By the testimony the plaintiffs’ lot and the defendant’s lot were originally one piece. By the division and sale to different parties the plaintiffs’ lot was left with no other way out to the public thoroughfares than through the portion sold to the defendant. This right of way has not always been denied, though it appears that for a time the plaintiffs had a way out by sufferance which they used to some extent over a vacant lot which has since been built up and closed. Their non-user was neither for the length of time requisite to establish an abandonment of the easement, nor was it coupled with any circumstances tending to show an intention to abandon it. See Washburn on Easements and Servitudes, 551. Their right of way by necessity therefore exists and is unimpaired.

The doctrine controlling this case was fully set forth in Achi vs. Poni, July Term, 1884. We confirm the judgment of the Commissioners in favor of the plaintiffs in manner and form as expressed in their judgment.  