
    SUPREME COURT—IN BANCO.
    JANUARY TERM—1882.
    
      Judd, C. J., Me Cully and Austin, J.J.
    
    F. Enos vs. Wa Sing.
    ON APPEAL FROM THE COMMISSIONERS OF PRIVATE WAYS, ETC..
    The defendant, over whose land a right of way was claimed by plaintiff, having dug away and reduced in width the banks between kalo patches anciently used by plaintiff and his grantors as a right of way, the Court awarded him a right of way by necessity.through another and more convenient portion of defendant’s land.
   Opinion of the Court by

McCully, J.

In this case the Court heard testimony at large for both parties in addition to the record of Commissioners, and after-wards visited and made a careful examination of. the locality.

From the testimony and' from our observation of the premises, we are- satisfied that the complainant has had his exit and entrance through the defendant’s premises by some kua-unas or taro patch banks, and that there is not now and probably never has-been a way as the defendant’s witnesses support, viz., in a northerly or mauka direction along the Pahoa stream-; and coming out near the'bridge on the main road to Maunalua.

We are of opinion, from observation that the particular banks claimed by the plaintiff' were' those which had been used for a way in late years, although the evidence is that when the defendant’s land was not in cultivation or but partially cultivated, travel was not strictly confined thereon. There was at all times some way through the defendant’s premises, and there must be now from necessity somewhere a way through them.

The defendant has, however, entirely cut away a portion of said way and reduced it to a water patch, for taro or rice, and another portion he has cut down to a foot or less in width, which is insufficient for even foot passengers. This is the-way awarded by the Commissioners. It appeared to us on inspection that this obliteration and reduction of the road had been very recently done, probably since the award of the Commissioners.

The removal of the slight fences as we saw them, would not give the plaintiff' the relief he seeks. There is, however, a kuauna or bank, which is spoken of in the testimony as having been sparsely planted with sweet potatoes in order to bar travel over it, which would afford a direct and convenient way for most of the distance to the public road.

Having found that the plaintiff is entitled to a road of necessity, and that he has hitherto enjoyed it by traversing some part of the defendant’s land, we award him as follows :

A right of way by the last said kuauna which is the kuauna starting from near the east and mauka corner of plaintiff’s premises, and running in- an easterly direction about at right angles to the road, coming out through the bars now being makai of defendant’s house. This way to be made by the defendant three feet wide in those parts where it is now less than that, with right of exit by the defendant’s bars, which the plaintiff must put down and up as he uses them, but this award does not give to plaintiff the right to fence in the way hereby awarded. Costs divided.

J. L. Kaulukou for plaintiff.

Castle & Hatch for defendant.

Honolulu, February 1, 1882.  