Territory Hawai`i v. McCandless

• Decision Date: 09 May 1905
• Citation: 16 Haw. 728
• Parties: TERRITORY OF HAWAII v. WILLIAM MCCANDLESS.
• Court: Hawaii Supreme Court

16 Haw. 728

TERRITORY OF HAWAII

v.WILLIAM MCCANDLESS.

Supreme Court of the Territory of Hawai‘i.

Argued May 2, 1905.

Decided May 9, 1905.

APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.

Syllabus by the Court

The trial judge dismissed the plaintiff's bill to restrain the respondent from obstructing a highway by a fence cutting off a portion of the highway, regarding the evidence as not justifying him in saying that the fence was in the highway. Held: The burden being upon the complainant to prove that the enclosed space was part of the road, the decree dismissing the bill cannot be reversed without taking a different view of the accuracy of the plaintiff's testimony than was taken by the judge who heard it. The decree is affirmed, but without prejudice.

Dismissing a bill on close of plaintiff's case before defendant presents or rests his case is not correct practice in equity.

Castle & Withington for complainant.

J. A. Magoon and J. Lightfoot for respondent.

FREAR, C.J., HARTWELL AND WILDER, JJ.

OPINION OF THE COURT BY HARTWELL, J.

This was a bill in equity to restrain the respondent from obstructing a highway in Honolulu from King street to the rice mill of Y. Ah Hin by a fence cutting off a portion of the highway “150 feet in length and varying in width from ten feet to fifteen feet.” The judge in dismissing the bill said: “The evidence shows in this matter that there has been some sort of way for a great many years, perhaps since about 1865 or 1866, but it does not very clearly show the location of the road, nor the width, except as to the use of it.” After remarking that the width of the Achi lane “which is that portion of the road leading into the road in question” was substantially the same as the road in question, and that the plan in evidence showed that between the actual roadway and a ditch there was a strip in some places two or three feet wide, in one or two places four feet and in one place five feet, he thought it would be perfectly reasonable to regard the ditch as the margin of the road, and that the fact that it was not in very good condition would not necessarily lead to the conclusion that it was no part of the highway. He observed that the strip if added to what is actually used as a roadway would make a road “as wide or wider than the portion of the road in the Achi lane,” a witness for the plaintiff stating that “it was practically the same.” Therefore he declared that the evidence did not justify him in saying that the fence was in the highway, reaching his conclusion after personal inspection of the premises.

The plaintiff's brief...