
    
      In re BOUNDARIES OF KAPAHULU.
    Appeal prom Commissioner op Boundaries.
    Special Term, December, 1883.
    Judd, C. J.j McCully and Austin, JJ.
    The evidence being very conflicting, and nearly evenly- balanced, the Court affirms the decision of the Commissioner appealed from. -
    
      Ex parte surveys, not followed by adverse possession, have little force as evidence of boundaries.
   Opinion op the Court, by

Austin, J.

This case is here on appeal from a judgment rendered by the Boundary Commissioner of Oahu in the matter of the settlement of the boundaries of the Iliaina of Kapahulu. The owners of the adjoining lands of Waialae-nui and Waialae-iki claim that the judgment includes about 1,000 acres of land which properly belong to Waialae-nui.

The territory in dispute is a barren tract lying to the eastward of Diamond Head.

The boundaries of Kapahulu were declared by Boundary Commissioner W. P. Kamakau, by his judgment rendered December 23, 1872, to be nearly as now settled, but owing to certain legal defects in the fixing of the boundaries as to the land of Waialae-iki, the judgment was vacated by the decree of the Chancellor entered May 11, 1883, and a new proceeding was taken herein to again settle the boundaries of Kapahulu,

On carefully examining the evidence taken before the Boundary Commissioner, and the additional evidence taken before us, we are inclined to believe that the decision of the Boundary Commissioner is right. The evidence is very conflicting, and is nearly evenly balanced. The contestants present maps made by ¥m. Webster, of Waialae-iki and Waialae-nui, bearing date June 7, 1851, and copy of description of Waialae-iki, dated April 26, 1856, which, if correct, show that the contestants are entitled to the land in dispute.

8. B. Dole and W. O. Smith, for plaintiff.

F. M. Hatch, for defendant.

Honolulu, January 14, 1884.

We think, however, that there is not sufficient evidence that they were known of, or that the boundary as fixed by them was assented to at. any time by the owners of Kapahulu. Certain acts of occupation with his cattle in grazing by Mahuka, the tenant of the contestants’ ancestors, were shown, but nothing which would amount to an adverse possession, nor was such possession claimed. It was shown that Mahuka was the lessee of Kapahulu also, and this would account for his use of it, and some evidence says that the owners of Kapahulu were angry at the claim of Mahuka., based on the Webster map.

The evidence shows that Mahuka pointed out to Webster the boundaries of Kapahulu, and his map is based on this showing. Without possession or other supports, the map becomes only a mere declaration of Mahuka in favor of his lessors, and has little force. Against Mr. Webster’s map, the petitioners present an old map of the adjoining land of “Kekio,” made by W. H. Pease, in which the territory in dispute is called Kapahulu. This being an ex parte survey, the same criticism applies to it.

The comparatively valueless character of the land whose boundaries are here sought to be established, no doubt, largely accounts for the indefinite and contradictory nature of the testimony adduced.

The best result we are able to reach is that the boundaries of the land of Kapahulu are as described in the certificate of the Boundary Commission, and we therefore affirm the same.  