
    FRANK ROBELLO v. THE COUNTY OF MAUI.
    Appeal from Circuit Judge, Second Circuit.
    Submitted July 23, 1908.
    Decided July 25, 1908.
    Hartwell, C. J., Wilder and Ballou, JJ.
    
      Highways — effect of lease.
    
    The leasing of public land under a right of purchase lease does not extinguish a highway existing across it, particularly when the highway is marked as an “old road” upon the government map referred to in the lease.
    
      Hioiiways — method of closing.
    
    A public highway can be closed only by the method prescribed by statute, and no representations by public officers would justify a land owner in closing it by fencing.
   OPINION OF THE COURT.BY

BALLOU, J.

The plaintiff is the holder of a right of purchase lease of land described therein as “lot No. 6 on the government map of the Omaopio lots dated July 9, 1906, and is situated at Qmaopio, Kula, District of Makawao, Island of Maui, containing an area of 51.5 acres and is classed as pastoral-agricultural land.” The government map referred to shows a “new 50' road” running along a portion of the .boundary of lot 6 and an “old road” marked in dashes extending through lot 6. There is some conflict of testimony as to how much of the old road thus described is now passable, it being claimed on behalf of the plaintiff that it has been abandoned at one spot, at least by wheeled vehicles, on account of a washout. After several months’ occupation of the lot, plaintiff, claiming that he was obliged to fence under the terms of his lease, fenced in the ends of the old road, at the same time clearing the cactus along a portion of the line of the “new road,” upon which no construction work has been done either by the Territory or by the county. The defendant, acting by its road supervisor, broke down the fences which obstructed the old road whereupon the plaintiff repaired them and obtained a permanent injunction against any further interference. From the decree granting this injunction defendant appealed.

E. L. Sec. 5S6 provides, “All public highways once established shall continue until abandoned by due process of law.” The only statutory provisions for closing highways are Sec. 9 of the County Act (S. L. 1905, Act 39) and E. L. Chap. 52, and no steps have been taken under either statute in the present instance. It is beyond question that the commissioner of public lands cannot by leasing or selling land with no express reservation extinguish the easement of the public in a highway, nor .is it apparent that he assumed to do-'so in the present instance. The plaintiff took his lease with full knowledge of the existing highway, not only by reference thereto on the map but by actual knowledge of conditions on the ground; the .misunderstanding, if any, being not as to existing conditions but as to what was to be done in the future. The sub agent of public lands told the applicants for these homestead leases that until the new road was built the old road was to be left open, from which the plaintiff may have assumed that either the Territory or the county would proceed in a reasonable time to construct the new road as shown on the map, and that the easement over the old road would then be extinguished. However this may be and whatever may be the reason for the failure to construct the proposed new road, the plaintiff was not authorized to take the law into his own hands and exclude the public from a recognized and existing highway. No injunction should have been granted which restrained the defendant from keeping open the public highway. If the destruction of the fences was in excess of what was requisite for this end he should have been left to his remedy at law.

J. M. Vivas and A. G. Goma for plaintiff.

D. H. Gose and W. F. Grochett for defendant.

In view of the result we have reached it is unnecessary to decide the reserved question as to liability of the county for costs, which was based upon the assumption that the county was the losing party.

The decree appealed from is reversed. .  