Smith v. Hamakua Mill Co.
| Decision Date | 27 May 1904 |
| Citation | 15 Haw. 648 |
| Parties | HENRY SMITH v. HAMAKUA MILL COMPANY. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.
Syllabus by the Court
Declarations against interest by an alleged adverse possessor of land are admissible to show the nature of the possession.
It is of the essence of adverse possession that it should be hostile and that the circumstances of the holding be such as to give the true owner notice, at least if he paid attention to his rights, that the possession is under claim as owner; and if the possessor so conducts himself towards the true owner as to lead him to believe that the possession is in subordination to his title, the elements of hostility and openness are lacking and the possession is not adverse.
The evidence in this case held sufficient to support a finding that the alleged adverse possession was not hostile for a portion of the necessary statutory period or the conclusion that such possession was not shown to be hostile for such portion of the period to the satisfaction of the jury.
Under C.L., §2113, kindred of the half blood of the intestate who are not of the blood of the ancestor are excluded from the inheritance, not only as against the kindred of the whole blood in the same degree who are of the blood of the ancestor but also as against the remoter kindred who are of such blood.
Kailakanoa, a konohiki whose name appears in the Mahele Book of 1848, died intestate in 1856 without having obtained an award for the land and without having alienated her right or estate, if any, therein. Huakini, her sole heir, died in 1860, intestate and, similarly, without any attempt at alienation. In 1862, the Minister of the Interior issued, under the Act of 1860 for the relief of konohikis, an award for the land in the name of Kailakanoa. Held, that the award inured to the benefit of the heirs of Kailakanoa, that is, of those who would have inherited the land from her if the award had been issued in her lifetime; and that, in ascertaining who such heirs were, a half brother of Huakini not of the blood of Kailakanoa must, under the proviso of section 2113, be excluded in favor of the remote kindred of Huakini who were of the blood of Kailakanoa.
Kinney, McClanahan & Cooper and S. H. Derby for plaintiff.
A. S. Hartwell and Cecil Brown for defendant.
For past history of this case, see 13 Haw. 245, Ib. 716, and 14 Haw. 669. The case is now here on defendant's exceptions taken at the third trial.
At the close of the evidence the defendant moved that the jury be directed to render a verdict in its, the defendant's, favor, upon the ground, among others, “that upon the undisputed and uncontradicted facts shown by all the evidence in said cause, the defendant's defense of the statute of limitations was and is fully sustained, both in fact and in law,” and after verdict moved, on the same ground, for judgment non obstante veredicto. Both motions were denied and exceptions allowed to the rulings. Whether or not an exception was noted to the verdict before the discharge of the jury, is disputed. It may be assumed, in view of the conclusion reached by us on the merits, that such an exception was duly noted or that, if it was not, the question of the sufficiency of the evidence to support the verdict on the issue of adverse possession is presented by the other exceptions just referred to.
At the trial the plaintiff adduced evidence tending to show, as it is claimed, that the paper title to an undivided one-fourth of the land of Koholalele, Hamakua, Hawaii, was in the plaintiff. The defendant then introduced evidence tending to show that since the date of the decree of January 1, 1871, by Chief Justice Allen, the defendant and its predecessors in interest have had possession of the whole ahupuaa adversely to the plaintiff and those under whom he claims and since 1874, in which year Huakini's widow, Hoomana, conveyed her one-half interest to Paul Nahaolelua, adversely to all, the facts thus shown being substantially the same as those proven at the second trial, a statement of which is to be found in 14 Haw. 671, 672, 673. In rebuttal, two witnesses Mrs. Kia Nahaolelua and D. Kahaulelio, testified for the plaintiff. As at the second trial, undisputed evidence required a finding that the defendant and its predecessors in interest had, for a period of more than twenty years next preceding the commencement of this action (service of summons was made November 26, 1897), possession that was actual and continuous; and as at that trial it seems to be conceded that since December 2, 1878, the date of the deed from Kia Nahaolelua to Widemann, that possession had all the elements of an adverse holding. The plaintiff's contention now, as then, is that there was evidence sufficient to support a finding that as against Kapehe and the grandchildren of Kapau (plaintiff's predecessors in interest) the possession of the Nahaoleluas was not hostile, open, notorious or exclusive, and that these two men so acted towards the parties just named as to lead them to believe that the possession was on their behalf and not under claim of absolute ownership. In our opinion, the present contention is well founded.
Kahaulelio testified, in part, as follows:
“Q. Do you remember the time that Kia Nahaolelua sold this land, this Koholalele?
A. After the death of P. Nahaolelua, in September, 1875, and somewheres in '76 or '77, Kia Nahaolelua disposed of this land of Koholalele.
Q. Did you have anything to do with that transfer?
A. Before the land was disposed of, Kia Nahaolelua came to me, acting as their attorney, to make out papers for the transfer.
Q. Please relate the conversation between yourself and Kia Nahaolelua?
A. After the death of Nahaolelua and when it was ascertained about a certain heir, then Kia Nahaolelua came to me and wanted to have this land disposed of. So I advised him that I thought it was not proper for him to sell the land now, inasmuch as there were heirs to the property,-well, blood relations to the property. And for the reason if he sold, why it would raise a disturbance, and for that purpose I advised him not to do it but rather to sell, if any to sell what you call the interest of the old man, P. Nahaolelua; so after that we parted and sometime afterwards I heard that the land was disposed of.
Q. What did he say when you told him-spoke to him in this way,-when you said there were other blood relatives?
A. He said that, ‘Never mind’ or ‘Never mind about that.’ He says ‘Let me sell it and they can fight for themselves.’ And I told him that I couldn't do that.
Q. How did you come to say that there were other blood relatives who had an interest in this land?
A. While I was his private secretary I used to have charge of sums of money. One was the Koholalele money, another was church funds, another was government funds, and moneys belonging to the chiefs, for their lands on Maui. Somewheres in '69, '70 or '71 I asked him in reference to the Koholalele funds and he told me that he was partly interested in that money but there were also some blood relatives that were interested in that money also, and during '72, '3 and in fact at the election of the King, King Kalakaua, what you call-there was a supposition that P. Nahaolelua would be taken away from Lahaina; that is, he would cease to be governor to be brought down here, and then we had further talk on the subject of this money and still he told me that there were other blood relatives that were interested in it.
Q. But he didn't say who their names were?
A. Yes, he didn't say who their names were.
Q. Did you know Kapehe, a relative of Nahaolelua? Did you know Kapehe?
A. I saw Kapehe during-about that time, '70 or '71 or between that, in Lahaina.
Q. Living where?
A. Lived with the governor sometimes, P. Nahaolelua, and sometimes with another gentleman up there by the name of Kawehi.
A. I told him at the time not to have anything to do with the sale of it, and also advised him that there were others making claims to the land and who were heirs also, and if he should make any sale whatever it would lead him into trouble, pilikia.
Q. But he paid no attention?
A. Paid no attention to it.
Q. How long ago was this conversation that he has just been relating?
A. The conversation between Kia was after the death of Nahaolelua, '76, '77, somewheres around there, but the conversation-
Q. About '76?
A. About '76, somewheres around there, but the conversation with Nahaolelua, P. Nahaolelua, was somewheres about '69 or '70, somewheres around there.”
Mrs. Kia Nahaolelua gave the following testimony:
“Q. Mrs. Nahaolelua, are you the widow of Kia Nahaolelua, the son of P. Nahaolelua?
A. Yes, sir.
Q. Or the adopted son of P. Nahaolelua. I will show you-show the witness Exhibit ‘C’, deed from- ‘6’, deed from Kia Nahaolelua and wife to H. A. Widemann, and ask the witness if that is your signature to that deed?
A. Yes, that is my handwriting.
Q. And you acknowledged that deed before Judge Fornander?
A. Yes.
Q. Why was there that long delay between the time your husband signed and the time you acknowledged that deed?
A. Because I didn't want to sell the land.
Q. Then please state what was said between Kia and yourself?
A. He wanted to sell the land but I wouldn't agree to it, but he says ‘we better sell the land and get the money, because there are heirs that will come in by and by’; he says, ‘and if we don't sell it now we will have to fight with the heirs.’ So I says,
Q. What word did he use for heirs? Did he talk Hawaiian or English to you?
A. He talked Hawaiian, some times in English.
Q. What was the word ‘heirs' in Hawaiian?
A. Pili koko.
Q. And you finally signed?
A. After a long time, then I signed it.
Q. Did you...
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