
    W. H. SHIPMAN vs. JOSEPH NAWAHI.
    Exceptions from Rulings of McCully, J„
    January Term, 1886.
    Judd, C. J.; McCully and Preston, JJ.
    The Ili of Piopio, being an ili kupono, is not subservient to the ahu-puaaof Waiakea, by which it is surrounded; and the lessee of the Ili of Piopio has no rights, as a hoaaina of the ahupuaa of Waiakea, in the sea fishery appurtenant to Waiakea.
    But it appearing, for the first time in the Appellate Court, that the lessee of Piopio has also a kuleana in Waiakea; held that said lessee, defendant herein, has a good defense to an action by plaintiff, the owner of Waiakea, for damages for breaking and entering the sea fishery of Waiakea.
    New trial ordered; costs to be paid by defendant, as it was through his laches that the case was left to the jury.
   Opinion op the Court, by

Preston, J.

This is an action of trespass, wherein the plaintiff claims $2,500 for alleged damages occasioned by the defendant’s breaking and entering the sea fishery of the plaintiff, adjoining and appurtenant to the plaintiff’s land, called Waiakea, Hilo, Hawaii, and taking fish therein.

At the trial, before McCully, J., and a mixed jury, who .rendered a verdict for plaintiff for $375, at the July (1885) Term of this Court, the defendant claimed a right of fishing as a hoaaina in the Ahupuaa of Waiakea, basing his claim as a lessee of the Ili of Piopio. .

The Court held that, as the Ili of Piopio was an ili kupono, it\. was a separate and independent title, and not subservient to the ^ ahupuaa, so that the owner of Piopio was not a tenant of Waia- , kea, and the fact that Piopio was surrounded by Waiakea did not make it a part thereof, and instructed the jury that there was not evidence to support the defendant’s claim. /

Exceptions were duly taken to this ruling, as well as to other rulings made by the presiding Judge during the trial, and the bill of exceptions was argued before us on the 18th of February last, as of the January Term.

From the circumstances hereafter appearing, it appears to us to be unnecessary to decide the several exceptions, some of them of considerable importance, except so far as to say that we are of opinion that the instructions and ruling of the learned Judge, with regard to the rights of the defendant under his lease of the Ili of Piopio, were correct.

But, on referring to the said lease, we find that, in addition to the Ili of Piopio, a kuleana in Waiakea, described as: “2. The ‘ Halai ’ kuleana, as described in Land Commission Award numbered 1279, on Waiakea,” is comprised in the demise. This was not brought to the attention of the Court or jury on the trial, nor to us on the arguing of the exceptions. It is clear that this changes the whole aspect of the case, and shows a good defense to the action.

We therefore think a new trial should be had, and so order. The costs of the previous trial and of these exceptions must be paid by the defendant, as it was through his laches the case was left to the jury.

L. A. Thurston, for plaintiff.

P. Neumann and W. A. Kinney, for defendant.

Honolulu, March 16, 1886.  