
    JAMES I. DOWSETT vs. MAUKEALA (k), NAEA (k), KAUMAEA (k), HINA (w), ELIKAI (k), and KALUAHILO (k).
    Ejectment. Exceptions.
    Hearing, September 18, 1893.
    Decision, October 26, 1893.
    Judd, C.J., Bickerton and Frear, JJ.
    The Court declines to reverse the decision of the Circuit Court setting aside the verdict and ordering a new trial on the ground that the verdict is contrary to law and the evidence.
   Opinion oe the Court, by

Bickerton, J.

This cause came on for healing at the February Term, 1893, of the Circuit Court of the First Circuit before a mixed jury, and resulted in a verdict for the defendants, to which the plaintiff noted an exception on the ground of its being contrary to law and the evidence, and gave notice of a motion for a new trial, which motion was duly filed and argued, and the trial Judge rendered and filed his decision ordering that the verdict be set aside and a new trial had. Whereupon defendants filed their exception to said decision and order. The matter now comes here on a duly allowed bill of exceptions.

The decision of Judge Whiting on the motion for a new-trial and now appealed from, is as follows:

Trial of the above action was had at the February Term, .1893, of this Court, and a verdict rendered by the jury for the defendants. The plaintiff claimed title by mesne conveyance from the patentee; the defendants claimed by right of adverse possession. The parcel of land in dispute is situate at Ewa, Oahu, called “ Kapuaikaula,” being a portion of the ahupuaa of Halawa. The record title of the plaintiff was proved without dispute direct from the patentee by mesne conveyance to himself who claimed as lessee from the trustee of the estate of Emma Kaleleonalani of one half of the ahupuaa of Halawa. The defense being adverse possession, claim was made of such possession for a period even prior to the Land Commission.

The jury found a verdict for the defendants and the' plaintiff moved for a new trial on the ground that the verdict is contrary to the law and the evidence; and also that the Judge erred in refusing to charge the jury “ that a mere occupation of a portion of the ahupuaa without fencing the same off, or positive acts of ownership, is not a sufficient notification of a claim of title so that the statute of limitation may run in favor of the occupier; the landlord must have notice of the adverse claim before the statute commences.”

I have carefully reviewed the evidence and charge to the jury, and I am of the opinion that the verdict is contrary to the law and the evidence, and that a new trial should be granted, as the jury neglected properly to consider the facts and have overlooked prominent and essential points in the evidence. There are many such points in this case, viz., that defendants’ ancestors and a part of defendants were on the land of Halawa and the place in dispute before the Land Commission, and remained there from that time, but no claim for a kuleana nor any claim whatsoever was made by them or any one on their behalf or for the ancestors before the Land Commission; and that the parcel of land in dispute, “ Kapuaikaula,” is not an ili, lele or ahupuaa of itself, nor a lele or kuleana of the ahupuaa of Halawa, but was merely a portion of the ahupuaa as of a whole land; it was not a division of a land.

That this portion of the ahupuaa of Halawa was occupied by the fishermen and the hoaainas of the konohiki, and that neither the defendants nor their ancestors were kuleana men or konohikis.

That defendants and their ancestors were living under the konohiki, and Were heaainas and kahus oí the alii, and -the defendants continued as such under the different konohiki s •and their lunas of the land until Queen Emma’s death .in 1885 4 .and no claim of adverse -title was made until after her death; and no .notice given to .any konohiki or luna of the land that defendants were-claiming-this parcel of the land as ■their own till after her -death.

That the original holding -of defendants was permissive and with the consent of tbe konobiki.

That Holokahiki, who died in 1872, from whom the-defendants claim, was the luna of the konohiki, and he was succeeded -by -others.

That defendants paid rent to Dowsett, -who bad charge of •the land within twenty years last, and -otherwise attorned to him.

That the -premises were unfenced, not definite in -area or boundaries, and not in continuous possession, and that -defendants’ possession was not exclusive.

That defendants’ living on this piece of land was consistent with the owner’s -rights, originally being permissive, until /direct notice was brought .to the owner of an adverse claim.

I am of tbe opinion that tbe jury-did not properly consider tbe question of the time when the defendants set up a claim adverse to the owner, nor did they properly consider the question of -notoriety of adverse possession by defendants ■ so ■as to bring it to the notice, of the owner, nor that the claim of defendants was distinct and hostile to .the rightful paper title, nor the points above stated.

The second point of plaintiff’s motion I overrule.

The motion for a new trial is granted, and the verdict.sét aside.

Dv the Court.

The trial -of the case occupied-.several-days, and the evidence adduced was very voluminous. We have carefully examined and considered all this testimony, and we are of "the opinion -that the findings .of the .trial- Judge. and the grounds -upon which. be- granted', a new trial are-well sustained' By. the-evidencie.. Ii:.is-elfearly 'a ease- of. permissive- bolding - on¡ the-- part: of the- defendants, and'i not one of adverse-possession... Elikai,.ome of. tbe defendants, says,.“Tbe first' tim e that, L publicly stated.to -anybody' tliat P owned’ the- land and would not pay rent; was-.when Miv Rbwsett, junior, .came • there-and-asked; and. I. was-the-only man,, the one man ofthewhole-lot'that-refusedlto-pay rent,. and. said^ that the reason-was-that. the land was mine ;b and.,when--asked' how long ago - that was,, he says;.“Not'very long'ago;:I don’t, remember-what year it. was,. But not' very long ago. The-evidence of' other witnesses- would, indicate that this- visit' of Rowsett, junior,, took place- about- six or seven years ago...

C. Brownj .for plaintiff.’

G; W. Ashjford,iov defendants..

This case seems- fro- us to be almost a parallel’ one -to. the ■ case of. C. R. Bishop, et al., trustees, vs. Kala, et al., 7th Haw., 590. In that ease the verdict'was-set aside and, a new. trial, ordered-,, the- Court saying,T.he weight of the whole-evidence is so-clearly and decidedly in favor of. the plaintiffs, that we feel, that-, the jury'must either have misunderstood its* effect or have acted, .when, they returned a. verdict for'defendants,, from, some bias or-prejudice.-” We feel that, this-language is applicable to- the case at bar. We h-ave -before ns .the-charge of the Court to the jury in this. case,. and the-law was well.laid clown-and explained, .as-to what constituted adverse-possession,. and what constituted only permissive-occupation, or. possession.. This must, have- been disregarded. by the jury,.for if. they.had applied. the law as given by the Court to the evid-énee. .they could.not have found, the verdict they did..

The-decisionjandiorder.of. the Circuit Court setting aside-the -verdict and ordering;a. new- trial is, sustained..

Exceptions overruled^.  