
    W. H. CORNWELL vs. JOSEPH FERNANDEZ.
    In Equity.
    Before Preston, J.
    April, 1888.
    Plaintiff avers that defendant claims title to plaintiff’s land under an alleged lease, which claim is a cloud on plaintiff’s title: and asks that the lease he cancelled and defendant enjoined from trespassing.
    Demurrer sustained, because it is not alleged that any trespass has been committed or would cause irreparable injury: and the mere statement that defendant claims the land is not sufficient.
   Decision of

Preston, J.

The bill states that the plaintiff is in possession of certain lands situate at Kula, in the Island of Maui, under a lease dated the 29th January, 1887, made by Her Majesty Queen Kapiolani and His Majesty to the plaintiff. That the defendant claims the right of possession of said lands, and holds out that he is entitled to possession of said lands by virtue of a lease purporting to be the deed of Her Majesty under a certain pretended letter of attorney purporting to having been signed by Her said Majesty to one Moses Kealoha. That the plaintiff is informed, and believes and avers, that the defendant has no title or right or interest in said lands other than that set forth. That Her Majesty is the lessor of plaintiff and the pretended lessor of the defendant, and is now a married woman. That the claim of the defendant and the pretended lease held by him operate as a cloud upon the title of the plaintiff, to the great and continuing injury of the plaintiff, who by reason of said claim and pretended indenture of lease is disturbed in the quiet possession of said'lands, and subject to continued trespasses thereon on the part of the defendant.

The bill prays that the said pretended lease be ordered to be delivered up and cancelled, and for an injunction restraining the defendant from trespassing.

The defendant demurred for want of equity.

P. Neumann, for plaintiff.

Ashford & Ashford, for defendant.

Honolulu, April 20th, 1888.

I am of opinion that no case for an injunction is shown by this bill against the trespassing by the defendant. It is not alleged that any trespass is threatened, or that if committed it would carry irreparable injury to the plaintiff. This case in this respect is clearly within the decision in McKibbin vs. Spencer, 3 Hawn., 574.

I also think that the bill, so far as it alleges that the pretended lease is a cloud upon the plaintiff’s title, is demurrable. The plaintiff alleges and shows that no estate is in the defendant by virtue of that lease; the lease was recorded and the plaintiff took his lease with knowledge of this alleged cloud. It does not appear that the defendant has done anything to molest the plaintiff in his possession, or has threatened to do so. The mere statement that he claims to be entitled to the possession of the land is not sufficient.

The demurrer is allowed..  