
    VICTORIA WARD vs. J. KAMANAOULU.
    Appeal from District Court of Honolulu.
    Hearing, December, 19, 1894
    Decision, February 25, 1895.
    Judd, O.J., Bickerton, J., and Whiting, Circuit Judge, who SAT IN PLACE OF Mr. JUSTICE FrEAR, ABSENT FROM ILLNESS.
    [n a,n action in the District Court of Honolulu of trespass quart dausinu frcyit, for digging a ditch, on plaintiff’s land, the defendant “ admitted the acts complained of, claiming title in himself and pleaded to the jurisdiction, denying' title of plaintiff.’’ The statute, Section 10. Judiciary Act of 1892, prescribes that district courts shall not have cognizance of real actions, nor actions in which the title to real estate shall come in question ; Held, in the absence of a statute or a rule requiring more, the plea, is sufficient to oust the District Court of its jurisdiction.
   Opinion of the Court, by

Judd, C.J.

This is an action of trespass quart clausum fregit, plaintiff claiming damages for the defendant’s wrongful entry upon plaintiff’s land at Kukuluaeo, Honolulu, and digging a ditch thereon. The suit was brought in the District Court of Honolulu. Defendant plead orally as follows : “ Defendant admits the acts complained of, claiming title in himself, and pleads to the jurisdiction, denying title of plaintiff.” The magistrate sustained the plea to the jurisdiction, and plaintiff appealed to this Court on the following points of law :

“ 1. In a suit for trespass on or damage to land, even though defendant pleads title, the district court should hear the evidence on both sides before deciding that the suit involves title to real estate, and sustaining a plea to the jurisdiction on that ground.

“2. The mere plea that ‘defendant claims title,’ without stating what he claims or why he claims it, is not sufficient to oust the district coru’t of jurisdiction.

“ 8. It is only title to land that district courts ought not to adjudicate; title or right to an easement should be within their jurisdiction.”

“ Section 10 of the Act to Re-organize the Judiciary Department prescribes that district courts ‘shall not have cognizance of real actions, nor actions in which title to real estate shall come in question.’ ”

We assume that an action of trespass qitare clausum fregit is within the jurisdiction of the district courts, if the ad damnum, is within the statutory limit. Such an action is not a “ real action,” nor does “ the title to real estate” necessarily come in question. But it may come in question. Where the defendant pleads in justification that the locus in quo is his soil and freehold (commonly called a plea of liberum tenementum), the title to the real estate would come in question. This preliminary question the district court has no jurisdiction to hear — the statute forbids it. The plaintiff urges that the district court should have, heard the evidence on both sides in order to determine whether the suit in fact' involved title to real estate. But, as said.by this Court in Coney vs. Manele, 4 Haw., 157, per Harris, C. J., “ the setting rrp a title hostile to the plaintiff’s title, whereby the magistrate becomes advised that the defendant claims adversely to the plaintiff, and not under him, is sufficient to take it out of the jurisdiction of district magistrates * * * and if the magistrate could go on and inquire if his title is good, he would be passing the defendant’s title and stretching the authority of the law greatly beyond what was contemplated.”

The cases are not exactly parallel; that of Coney vs. Manele being an action for summary possession of land, (Comp. Law’s, p. 274), the plaintiff claiming the defendant to be his tenant. But the question wuis the same as in the case at bar, namely, whether the defendant’s plea of title in himself without adducing evidence to sustain it, was sufficient to oust the district magistrate of his jurisdiction. And it was held that it was sufficient. See also, In re Kameeui, 6 Haw. 542. But in this case the court prohibited the lower court from issuing execution in a case where it had heard and determined title to real estate.

W. Foster, for plaintiff.

Garter d- Garter, for defendant.

It is urged upon us that as the present case claims damages for digging a ditch, presumably the only title in the defendant would be an “ easement.” But the defendant has not justified the alleged trespass by a plea that he -had a right to dig the ditch on plaintiff’s land, having acquired an easement therein. He does not set up an “ easement.” He claims title to the land alleged to be trespassed upon and denies plaintiff’s title to the same. We are aware of the mischiefs that are likely to occur where reckless or dishonest pleas of this character may be set up, compelling parties in the maintenance of their possession of land to resort to the higher courts for the pursuit of tneir remedies. But we feel obliged to follow the precedents of this court and sustain such pleas without further proof — there being no statute nor rule requiring more. That a remedy might have to be provided was thought of in 1879, where the court remark in Coney vs. Manele, supra, that “ if dishonest pleas should be set up by defendants undoubtedly effectual means will be found to obviate the effects of such dishonesty.”

A rule will be made to apply to future cases.

Appeal dismissed.  