Kalaukoa v. Keawe

• Citation: 9 Haw. 191
• Parties: LULIA KALAUKOA v. C. KEAWE.
• Decision Date: 28 June 1893
• Court: Supreme Court of Hawai'i

9 Haw. 191

LULIA KALAUKOA v. C. KEAWE.

Supreme Court of Republic of Hawai'i.

June 28, 1893.

DECISION JULY 14, 1893.

APPEAL FROM COMMISSIONER OF PRIVATE WAYS, DISRICT OF HONOLULU.

Syllabus by the Court

A way of necessity by implied grant or reservation was created over one lot of land in favor of another, upon the conveyance of one by the former owner of both, the only means of access to one being over the other. At the time of, and for many years before and after the conveyance, an apparent and continuous way wide enough for carriages was in actual use and was appropriate for the use of the dominant estate. Held, the way impliedly granted or reserved was the way actually used and could not be cut down to a foot or horse way by the owner of the servient estate without the consent of the owner of the dominant estate.

W. A Kinney, for plaintiff.

J. K Kaulia and J. M. Kaneakua, for defendant.

JUDD C.J., BICKERTON AND FREAR, JJ.

OPINION

FREAR, J.

This is an appeal from the Commissioner of Private Ways and Water Rights for the District of Honolulu.

The question involved is the width of a private way claimed by the defendant over land belonging to the plaintiff. The way is a so-called way of necessity, the lands (covered by Royal Patents 2597 and 2677) of the plaintiff and defendant, having formerly belonged to the same person, one Waiaha, who conveyed them at different times to the grantors of the present owners, and the only way of access to the defendant's land being over the plaintiff's land. It does not appear, nor is it material, which land was conveyed first. The plaintiff admits the existence of a way, but contends that, being a way of necessity, it is limited as to its width by the necessity, which in this case it is contended requires only a foot and a horse way. The defendant claims a carriage way. The commissioner decided that the defendant was entitled to a carriage way at least eight feet wide by prescription. We are of opinion that the conclusion of the commissioner is correct, but for different reasons from those upon which it was based.

A way can be acquired by prescription only by adverse user for not less than twenty years. In the present case the two lands in question were owned by the same person, Waiaha, up to a time less than twenty years ago. And, although for many years prior to his conveyances he used the way now claimed, over one part of his land for the benefit of the other part, such user was not adverse, for no one can hold adversely to himself.

A way of necessity so-called is, strictly speaking, not created by necessity. It is created by grant or reservation. Ways are commonly said to be created by grant, by prescription or by necessity. But these distinctions relate to the mode of their proof rather than to the mode of their creation. It would be more correct to say that ways are created by express grant, by presumed grant and by implied grant-or reservation, as the case may be. In every instance the way is created by grant, or reservation, the difference being merely in the mode of proof. The question as to what is granted or reserved is a question of intention to be shown by competent evidence. In the case of an express grant the intention is proved generally by the terms of the instrument alone. In the case of a presumed grant it is proved by an adverse user for twenty years. In the case of an implied grant it is proved by all the circumstances of the case, and especially by the condition of the property at the time of the conveyance.

A way of necessity is merely a way created by an implied grant or reservation, the necessity being only evidence of the intention of the parties to make the grant or reservation. If it is not in the power of the grantor to create a way, no necessity however strict or absolute, can be evidence of an intention to do so, -as where the only means of access to the land is over the land of a stranger. But if it is in the power of the grantor, strict necessity alone is sufficient evidence -as where the only means of access is over the land conveyed or reserved by the grantor. And even where there is not a...