In re Ward

• Decision Date: 28 November 1932
• Docket Number: 6546.,No. 6545,6545
• Citation: 61 F.2d 896
• Parties: In re WARD. WARD et al. v. CITY AND COUNTY OF HONOLULU.
• Court: U.S. Court of Appeals — Ninth Circuit

61 F.2d 896 (1932)

In re WARD WARD et al. v. CITY AND COUNTY OF HONOLULU.

Nos. 6545, 6546.

Circuit Court of Appeals, Ninth Circuit.

November 28, 1932.

Charles B. Dwight, of Honolulu, Hawaii, for appellants.

James F. Gilliland, City and County Atty., and Leslie P. Scott, Deputy City and County Atty., both of Honolulu, Hawaii, for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and NORCROSS, District Judge.

SAWTELLE, Circuit Judge.

These proceedings have come to this court upon appeals from the judgments of the Supreme Court of the territory of Hawaii, made and entered on March 2, 1931. As the issues involved in both causes are similar, by stipulation approved by this court the causes were consolidated for briefing and argument.

Cause No. 6545 was instituted in the Land Court of Hawaii, by a petition of the city and county of Honolulu, praying for the issuance to it of a certificate of title covering lots F and G of Land Court application No. 670. That cause will hereinafter be referred to as the Land Court proceeding.

The petition alleged that on March 19, 1928, the city and county of Honolulu instituted a suit in eminent domain in the Circuit Court of the First Judicial Circuit of Hawaii, against Victoria Ward, to condemn the parcels above named. That suit will hereinafter be referred to as the eminent domain proceeding.

The petition further alleged that summons in the eminent domain proceeding was issued on March 19, 1928, that service was made on the following day, and that on July 18, 1928, during the pendency of the eminent domain proceeding, Victoria Ward, the defendant therein, executed a deed conveying parcels F and G and other lands to her daughters, the three appellants herein, as joint tenants with herself, and that pursuant thereto transfer of title No. 7250 was issued out of the Land Court to the said three appellants.

It was also alleged in the petition that judgment in the eminent domain proceeding was entered on October 23, 1928, and that the final order of condemnation was entered on January 7, 1930, which order was recorded in the office of the registrar of conveyances. An order to show cause was issued upon the petition, addressed to Victoria Ward and her three daughters.

Victoria Ward filed a separate answer and return, and the cause was dismissed as to her. The three appellants herein filed their answer and return, and admitted the petition's allegations regarding the proceedings in the eminent domain suit, as above set forth.

The appellants' answer, however, denied that they were present during all of the trial, and averred that they were the owners, as joint tenants with Victoria Ward of lots F and G of Land Court application No. 670, and were such owners at the time of the trial of the condemnation suit; that they were not joined as defendants; that no summons was served upon them in the eminent domain proceedings; that no compensation was offered or paid to them by the city and county of Honolulu, or the territory of Hawaii. It was stipulated by counsel that the appellants had actual notice in the eminent domain proceedings.

The facts having been admitted by the pleadings, after hearing argument, the Land Court granted the prayer of the petition, and the territorial Supreme Court affirmed the decree. In re Kewalo (In re Ward), 31 Hawaii, 781.

In the Land Court's decree, it was set forth that the appellants were the attorneys in fact of Victoria Ward at the time of the filing of the condemnation suit, were at various times present at and participated in the trial of that suit, and "had full, complete and actual notice of" its pendency.

In cause No. 6546, the appellants herein filed their bill in equity in the Circuit Court of the First Judicial Circuit of Hawaii praying for an injunction to restrain the city and county of Honolulu, its officers, agents and servants, from trespassing upon lots E, F, and G, and committing irreparable injury to the petitioners' homestead. A temporary restraining order was issued, but was vacated by consent on the following day. On February 6, 1931, there was entered a decree dismissing the bill for injunction. The cause was appealed to the territorial Supreme Court, and thence to this court. The opinion of the territorial Supreme Court affirming the Circuit Court's decree is to be found under the style of Ward v. City and County of Honolulu, etc., 31 Hawaii, 787.

The appellants' bill in cause No. 6546 alleged that the lots there in question constituted the appellants' family homestead, which had been maintained for more than fifty years; that the grounds of the homestead were planted to valuable trees; that the three lots constitute the proposed right of way for the Kapiolani boulevard, a proposed public highway of the city and county of Honolulu; and that the proposed right of way constituted a strip across the homestead, dividing it into two parts.

The bill further alleged, among other things, that the city and county threatened to fill in the right of way to a grade considerably higher than the remaining portion of the homestead lying in the direction toward the mountains and away from the sea; that, if the respondent had carried out its threat to enter upon the strip, the petitioners would suffer irreparable injury, in that, by filling in the proposed strip, the natural flow of surface waters, off of the homestead, would be obstructed and the flood waters would back up over and upon the homestead, killing or injuring the plants and trees; and that the stoppage of the flow of surface waters would make the premises unsanitary.

The petition further alleged that no compensation had been paid to the petitioners by the city and county for lots E, F, and G.

In the eminent domain proceedings numbered "Law No. 11946, Circuit Court of the First Judicial Circuit of the Territory of Hawaii, January Term, 1928," the judgment shows that the value of lots F and G was fixed at a total of $12,642.50 and $24,279.50, respectively, that the damage by reason of the construction of the public highway and the severance of the remaining portions of the property was set at $1,508, and that the fair market value of improvements on the property was $284; so that the total was found to be, in the final order of condemnation, the sum of $38,714, with interest of $3,222.20, making a grand total of $41,936.20, paid to Victoria Ward, through her attorney, A. Lewis, Jr. The judgment of condemnation was affirmed by the Supreme Court of Hawaii. City and County of Honolulu v. Victoria Ward, 31 Hawaii, 184.

In the equity suit, numbered equity 3121, being the suit against the city and county of Honolulu, Victoria Kathleen Ward testified in connection with a conveyance of the lots in question from her mother to herself and her two sisters. In answer to a question propounded by the court, the witness said:

"Yes, the suit against my mother was engineered by the attorney, and we were fighting her case in her name alone."

In answer to another question by the court, the same witness said that she knew through her mother's attorney that the mother was proceeding to fight the condemnation suit, that she was present at the trial of the issues and when the jury brought in its verdict, and that she "was quite content to have the matter fought out" on her mother's title.

Lucy Kaiaka Ward, another daughter, testified that she received no compensation in the condemnation suit; that she knew when the summons in that suit was served; that she was at that time her mother's attorney in fact; that she attended the trial of that suit on two occasions; that she did not make any effort to intervene in that suit on her own behalf; and that at the time the property was deeded to her, in July, 1928, she knew that the suit was pending.

On the question of the condition of the road and the use of it by the city and county of Honolulu, there is to be found the testimony of Lou M. Whitehouse, who had at various times been city and county engineer at Honolulu. Whitehouse testified that Ward avenue (lot E) in April, 1912, "was a right-of-way containing a meandering road, passageway for vehicles, open to the public, and they were using it all the time, but it was not paved," etc.

Daniel F. Balch, former engineer of the bureau of plans, surveys, and improvements, testified that he knew the conditions under which Mrs. Ward agreed to deed lot E to the territory of Hawaii for public road purposes, and "would say" that all of those conditions have been fulfilled. He also testified that G, one of the lots secured in the condemnation suit, had been in the possession of the city and county for about three years, and that, in his opinion, no damage would be suffered by the Ward property as a result of the construction of the projected boulevard.

As to lot F, both Whitehouse and Balch testified that was "a completely paved street" or...