Paulo v. Malo

• Decision Date: 01 May 1883
• Citation: 6 Haw. 390
• Parties: PAULO v. D. MALO.
• Court: Hawaii Supreme Court

6 Haw. 390

PAULO v. D. MALO.

Supreme Court of Kingdom of Hawai'i.

May 1, 1883

EJECTMENT.

Syllabus by the Court

Adverse possession held to be proven by cultivation of the land and payment of taxes: and the fact that defendant took out a Royal Patent for the land, in the name of plaintiff held not to be an admission of plaintiff's title.

W. R Castle, for plaintiff.

R. F Bickerton, for defendant.

BEFORE AUSTIN, J.

DECISION

AUSTIN J.

The plaintiff in ejectment established presumptive title as heir to the patentee Kea.

The defense has claimed title by adverse possession.

The plaintiff attacks first the character of the possession itself. He says it was not continuous or complete, and is for that reason insufficient.

To determine this point, the amount and nature of the land are to be considered. It consists of two and 45-100ths acres, mainly taro patches. There is a small part of it not adapted or used for kalo culture. The land was not fenced till lately. At one time a grass house was built on the land which was occupied by defendant and his father and his aunt, under whom he claims. This house was pulled down, but the proof establishes, I think, a substantial continuous cultivation of the taro land and occasional cultivation of the other land for potatoes.

The whole land is small. Only scraps of it, from time to time, were left idle. I think it may be found that the land was usually cultivated or improved. This is sufficient as to the kind of possession.

See Washburn on Real Property, Vol. 3, 140-1-9-150.

The defendant and those under whom he claims paid taxes on the land for over twenty years. The character of their acts and possession may be taken as notice to the owners of a claim of title. Express notice is not necessary to be shown. See authorities last cited.

The defendant's aunt Kahawalu, under whom defendant claims as her remote heir through his father Kalama, died in 1871; whatever rights she then had descended to her brother Kalama. Her husband, Hoohoku, took no interest from her under the then statute. Kalama retained the possession and transmitted it to the defendant; privity is shown by him with Kalama and with Kahawalu.

I therefore think that title by adverse possession is made out by the defendant, units other facts shown, to which I shall now refer, establish that the possession was not adverse, but in subserviency to the title of the plaintiff.

Kea, the patentee, died in 1849, in possession of the land in dispute and having been in possession since 1839. It was declared to have been his land on February 3d, 1848.

Kahawalu, widow of Kea, held possession after his death till some time in 1854. We have held that she had no right to the possession as widow. What was her intention in so holding possession may be inferred by her subsequent acts.

In 1854 she and her brother Kalama made application before the Land Commission, and the land was awarded to Kea by name, and his heirs. Subsequently, in 1856, Kahawalu obtained in the name of Kea a Royal Patent running to Kea and his heirs. This she...