
    LUI and KILAUANO, ALEKA and MALUHIA, minors, by their Guardian, DAVID KUA, v. WILLIAM KALEIKINI.
    EXCEPTIONS FROM CIRCUIT COÜRT, FlETH CIRCUIT.
    Submitted June 30, 1896.
    Decided July 28, 1896.
    •Judd, C.J., Frear and Whiting, JJ.
    An agreement in the form of a constitution was made by tenants in common of a tract of land by which they delegated to an officer called a Luna Nui (General Manager) appointed by them the care and control of their common estate. In pursuance of this power the general manager, by a writing, set off in severalty to each tenant portions of the common estate for occupation, subject to the approval of the tenants as to locality, as expressed by the vote of a regular meeting of the tenants.
    Held, this agreement is binding until rescinded.
    Where one of the above tenants under the above agreement dispossessed another tenant of the parcel of land set off to him, ejectment would lie to recover such possession.
   OPINION OP THE COURT BY

JUDD, O.J.

This case comes to us upon exceptions from tbe Circuit Court, Eifth Circuit, where tbe case was beard by Circuit Judge Hardy, jury waived. It is an action of ejectment.

The trial court found tbe undisputed facts that in January, 1869, some fifty native Hawaiians bought tbe land of “Wai-niha” on tbe Island of Kauai. On tbe 10th of September, 1811, a written constitution was signed by them. Of these persons one was Kumahakaua and another Kilauano, tbe father of tbe plaintiffs. This “constitution” provided for a general manager (lima nui), secretary and treasurer, and gave tbe care and control of tbe land of -tbe company (bui) to tbe general manager. It was provided by Sec. 5 of tbe “constitution” tbat five acres should be set apart to eacb member of tbe company. Tbe method adopted was tbat applications for lots were made in writing, and, on approval as to location, given at a stated meeting of tbe company held in pursuance of tbe constitution twice a year, the manager and secretary issued to tbe applicant a certificate, setting off to him by metes and bounds tbe parcel of land applied for.

Kumahakaua made application for a parcel of land called “Umi,” tbe one now sued for, and by consent of tbe manager took possession of it in 1878; but as be bad deeded bis interest in tbe land of Wainiha to bis son, Kilauano, in 1875, it was awarded by certificate directly to Kilauano in 1881. This allotment was ratified by tbe company at tbe meeting of July, 1888. Tbe plaintiffs are tbe children of this Kilauano, deceased intestate. Tbe defendant W. Kaleikini, also one of tbe tenants in common of this land, finding tbe tract in question unoccupied ■ — that is, no one actually living thereon — took possession of it in 1894 and refused to restore it to plaintiffs. Previous to this, in 1890, tbe company passed a resolution tbat no member of tbe bui (company) could cultivate at will land already set apart for another member. ITe could only do this upon approval by tbe manager. No evidence of tbe defendant’s contradicted these facts. Tbe Circuit Judge rendered judgment for plaintiffs for tbe possession of this land, and damages. Tbe exceptions taken by defendant are upon tbe same grounds upon which a non-suit was asked for in tbe trial court, and which was denied. They are substantially as follows:

1. Tbe plaintiffs cannot sue separately for tbe parcel of land in dispute, because it is only a part of tbe land of Wainiha, which is owned in common by many others, who have equal rights to every portion of it, and tbe defendant is one of them.

2. Tbe plaintiffs cannot sue to dispossess defendant from tbe parcel of land in question, because tbe land of Wainiha has never been partitioned between tbe respective tenants in common.

3. In tbis action all tbe tenants in common sbonld join either as plaintiffs or defendants.

4. Tbe records of tbe company do not afford evidence tbat tbe land bas been legally partitioned in severalty, to each member of tbe company.

5. Defendant does not bold tbe land in question for bimself alone, but for tbe company, and bis claim is not hostile to tbe company.

6. No hui (company) bas a right to make rules in contravention of tbe law of tbe land.

Tbe questions involved in tbis case are novel, owing to tbe novel circumstance of a number of persons having purchased a land, and, while using a large portion of it in common, have undertaken to set off specific portions of tbe land in severalty to each tenant. Tbis is not an uncommon transaction in these islands. To understand tbe situation better we must remember (1) tbat tbe vendees of tbe land of “Wainiha” were tenants in common. We so held in Awa v. Horner, 5 Haw. 543. (2) No effectual partition, either voluntary or by judicial action, bas been made between tbe tenants in common.

We then ask what right bas one co-tenant to bring ejectment against another co-tenant for a portion of tbe common estate? There bas been no ouster of 'the plaintiffs by defendant from tbe entire common estate, but only from a specific portion of tbe same. Each co-tenant bas tbe right of possession to every part of tbe common estate. So far forth then tbe defendant is as much entitled as tbe plaintiffs are to tbe possession of tbe parcel of land in question. But there remains tbe question whether the agreement to occupy in severalty according to tbe method adopted by tbe tenants in common is sufficient in law to give a right of action to tbe tenant to whom it was set off to recover its possession from another co-tenant.

We find no case parallel, but it seems to us tbat such an agreement made as tbis one is for tbe common benefit of tbe owners of the land, to secure harmony and to avoid expense, should be respected by the court, so long as it continues in force; and we see no difficulty in holding that as between the co-tenants themselves it is good, so far as the mere right of possession is concerned. Certainly the defendant had consented in writing to the allotments made in the method pursued. This is a necessary inference from his signing the constitution, which is in fact an agreement as to the method of using the common property. The ouster by defendant is in direct violation of his agreement which he by inference made when the resolution of 1890 was passed by the company, and to which he presumably consented.

A. Rosa, for plaintiffs.

J. L. Kaululcou, for defendant.

Ve held in line with this view that rules made by tenants in common regulating the management of their land as regards pasturage thereupon, were binding (until rescinded) upon owners and lessees having notice. In this view of the case, the other points stated in the bill of exceptions are not tenable. Burrows v. Paaluhi, 4 Haw. 464 (1882).

The exceptions are overruled.  