
    W. HENRY et al. vs. R. MAIKAI et al.
    
    Appeal from Commissioners of Ways.
    Hearing, June 17, 1890.
    Decision, July 25, 1890.
    Judd, C.J., McCully, Bicicerton, Dole, JJ.
    On a petition to open an ancient road across a land, it was shown that a road or path for horses and foot passengers had existed for many years across said land:
    Held, that the Commissioner was right in opening a road nine feet wide across the land; but it must be located on the line of the old road or path.
   Opinion of the Court,-by

Bickerton, J.

This matter comes here on appeal from the decision of the Commissioner of Rights of Way for the District of Koolaupoko, Island of Oahu.

The plaintiffs claim that a cart road should be opened across the defendants’ land to enable them to haul their -sugar-cane to the mill. After hearing the evidence and arguments, the Commissioner decided and ordered a road nine feet wide to be opened across defendants’ land. On the matter being presented here, the Court ordered a survey and map of defendants’ land and adjoining lands to be made, showing the location of roads, etc., etc. This was filed.

It appears from the evidence that an old road or path had existed for many years across the defendants’ land. The map locates this path along the northern boundary of the land; the map also locates the new road as claimed by plaintiff, across the center of the land. We do not find anything in the evidence that would warrant the changing of the location of the road from its original location, unless it might be the convenience of the plaintiffs, which would not be a good reason for doing so.

F. M. Hatch, for plaintiffs.

S. K. Kane, for defendants.

Where a right of way has been created by prescription or otherwise, it can be only be continued in the same location.

There is nothing in the decision of the Commissioner to indicate what he intended to change in the location; he simply opens a road nine feet wide across the defendants’ land, without locating it; it is fair to presume that he intended it to run on the same line as the ancient road. We therefore affirm the decision of the Commissioner, opening a road nine feet wide on defendants’ land, running along the line of the old road, along the northern boundary, and above the small ditch now there.

Costs to be divided between the plaintiffs and defendants.

Concurring Opinion of

Dole, J.

I do not think that the evidence proves a right to a cart road, as a right of way nine feet wide must be admitted to be, but as the width of the right of way does not appear to be the issue on appeal, which is rather the location of the right of way, I with some hesitation concur in the above decision. .  