
    SUPREME COURT — IN BANCO.
    Lot Kamehameha vs. P. Nahaolelua and J. H. Kaiheekai.
    Where a permissive use of a right of way only has been allowed, not amounting to a dedication or prescription, the owner of the premises may revoke the license at his pleasure, and resume the possession of the locus in quo.
    
   Justice Robertson

delivered the decision of the Court as follows;

This is an action of trespass, brought by the plaintiff, Prince L. Kamehameha, against the defendants, for a wrongful entry upon a certain premises, at Lahaina, the property of the plaintiff, known as the “Hoapili Premises.” The present action is, in effect, a new trial of the case of L. Kamehameha vs. J. D. Kahookano et als., tried at the October Term, 1858. Judgment in that case was-rendered on the 7th of May, 1859, in favor of the ■defendants ; and on the 18th of May, counsel 'for the plaintiff filed a motion for a new trial, on the ground that the testimony given by Mr. John Ii, to the effect that in the year 1848, a right of way had been granted to the public, over the premises in question, by Governor Kekuanaoa, who was at that time the plaintiff’s guardian, was a complete surprise upon the plaintiff, and also on the ground of newly-discovered evidence. The motion was supported by the affidavits of the. plaintiff, and of Governor Kekuanaoa, and came up for a hearing on the 23d of February, 1860, when it was refused by the Court, on the ground that the motion had not been filed within the time prescribed by law, nor a bond filed for costs, as required by the statute. The plaintiff then commenced the present action at the April Term, 1860, but it was not brought on for trial till the present Term, and has now been heard by the Court without the intervention of a jury. By agreement of the parties, all the testimony taken in the former suit was allowed to be read as evidence in the present case, and in addition to that, the testimony of Governor Kekuanaoa, together with some new and important testimony given by Mr. John Ii, are now before the Court.

The defendants in the former suit claimed to justify their entry on the ground that the public had a right of way over the plaintiff’s premises, either by prescription or by express grant. It will be seen that in that case the Court clearly rejected the claim to a right of way, by prescription; but sustained the claim to the right of way by express grant, or dedication, chiefly upon the testimony then given by Mr. John Ii. A summary of all the evidence adduced at the trial of the former case prefaces the judgment, and it is therefore unnecessary to refer to it here.

The defendants in the present case have not set up the claim to a public way over the plaintiff’s premises by prescription, such claim being clearly untenable, but rely upon the alleged express grant or dedication said to have been made by the plaintiff’s guardian in the year 1848. Touching this point, the testimony of Mr. Ii has again been elicited, and that more fully and with much greater particularity than in the other suit while the testimony of Governor Kekuanaoa, which is entirely new evidence, has also been added ; tending to modify materially the previous aspect of this part of the case.

The statements of these two witnesses, and their recollection of certain matters that transpired at the time, in relation to the alleged dedication of a way for public use, are partially in conflict ; while they are, upon some important points, reconcilable, so far as to have a combined and material bearing upon the rights of the parties. In our opinion it is clear, from the increased light that has now been thrown :upon the transaction of 1848, that the plaintiff’s gr.ardian never intended, and did not authorize Mr. Ii, as his agent, to make an absolute grant or dedication of a way for the public use, over the premises in question. At the time of the alleged grant, the plaintiff was in his nineteenth year, and had, with his guardian’s assent, assumed to a great extent, the management and control of his own estate ; so much so that Governor Kekuanaoa testifies, positively, that he did not take, and would not at that time have taken upon himself, the responsibility to alienate any part of the plaintiff’s property without his knowledge, and consent. The Governor states also, that, when applied to on behalf of the church members of Lahaina, for the grant of a way, he declared that he did not consider himself empowered to make such a grant, but that the plaintiff, when he became of full age, might do as he pleased in regard to it. While Mr. Ii testifies that he believed himself authorized, under the instructions which he received from Governor Kekuanaoa, to give the church members permission to use a way to the church over the plaintiff’s land, at his discretion ; and that he accordingly re-opened the way which they had formerly been permitted to use by Hoapiliwahine, but which had, previous to his visit, been obstructed by Polea, the land agent having charge of the premises ; in the belief that the plaintiff, when he came of age, would approve of what was done ; yet he states, distinctly, that Governor Kekuanaoa did not authorize him to grant a perpetual way to the public, or to alienate the plaintiff’s land ; nor did he, on his return to Honolulu, inform the plaintiff’s guardian that he had done so.

February 12, 1861.

Mr. Harris for the plaintiff.

Mr. Bates for the defendants.'

The question of intent on the part of the alleged grantor is of vital importance ; and upon that point the proofs do not, in our opinion, sustain the defense ; but, on the contrary, it appears to us that the re-opening of the way over the plaintiff’s premises, by Mr. Ii, amounted to nothing more than a renewal of the former permissive use, which had been temporarily interrupted; and being in law not a dedication, but merely a license revoca ble, the plaintiff may revoke the license at his pleasure, and resume the possession of the bous in quo.

No claim to a public way over the premises, on the ground of necessity, has been raised on the part of the defense ; nor would the evidence before us be sufficient to sustain such a claim.

Let judgment be entered, as of the last day of the term, in favor of the plaintiff, for one dollar damages and the costs.  