Tsunoda v. Kow

• Decision Date: 29 March 1917
• Docket Number: No. 984.,984.
• Citation: 23 Haw. 660
• Parties: H. TSUNODA v. YOUNG SUN KOW.
• Court: Hawaii Supreme Court

23 Haw. 660

H. TSUNODA

v.YOUNG SUN KOW.

No. 984.

Supreme Court of the Territory of Hawai‘i.

Argued March 1, 1917.

Decided March 29, 1917.

APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT. HON. C. W. ASHFORD, JUDGE.

(Robertson, C.J., dissenting.)

Syllabus by the Court

A lease, like any other contract, is to be construed so as to give effect to the intention of the parties and to every part of the instrument if possible, especially to conditions expressed therein.

No particular form of words is necessary to constitute a lease. Any language which shows the intention of the parties that the lessor will surrender his property and the lessee will take it for a specified term and upon stated conditions is sufficient.

A lease demised to the defendant four parcels of land on one of which was an artesian well; in the premises of the lease nothing was said about the privileges and appurtenances, while the habendum read “To have and to hold” with all “privileges and appurtenances,” followed by a stipulation that the defendant should have the right to use as much of the water from such well as should be necessary for the proper irrigation of the lands demised to him, it being shown that one-third of the water from the well is and for three years last past had been sufficient for the proper irrigation of the lands demised to the defendant and that the surplus (two-thirds) of the water from the well had been used in the necessary irrigation of adjacent lands: Held, that such surplus water was excluded from the operation of the lease to the defendant and did not pass to him as an incident necessary to the use of the lands demised.

C. F. Peterson for plaintiff.

Lorrin Andrews ( E. A. Douthitt on the brief) for defendant.

ROBERTSON, C.J., QUARLES AND COKE, JJ.

OPINION OF THE COURT BY QUARLES, J.

The plaintiff, appellant, filed his bill of complaint October 14, 1916, praying that the defendant show cause why he should not be enjoined and restrained from diverting certain waters from the lands of the plaintiff; that a temporary injunction issue; and that on final hearing the injunction be made perpetual. It is alleged in the bill of complaint that the Chinese Y. M. C. A., a domestic corporation, owns four certain tracts of land therein described containing 3.88 acres, upon one of which is an artesian well flowing 170,000 gallons of water every twenty-four hours; that said corporation on June 13, 1916, leased to the defendant for a term of five years commencing July 1, 1916, the said four tracts of land together with so much water from said artesian well as should be necessary for the purpose of irrigating the said lands so demised to the defendant and for his domestic purposes; that said corporation did, September 21, 1916, lease to the plaintiff's assignor all the water flowing from said well except such as should be necessary for the irrigation of the lands demised to the defendant and for his domestic purposes at an annual rental of $65 per year; that plaintiff is a sugar planter and possessed of eight acres of land adjacent to the said lands demised to the defendant, upon six acres of which he has growing cane fourteen months old, the other two acres being prepared and ready to plant to cane; that for the three years immediately last past he has by arrangement with the owner and controller of the said artesian well received from its flow of water sufficient water for the necessary irrigation of his cane; that the only source of water supply for plaintiff's growing cane is the water from the said artesian well, without which his crop would be destroyed to his irreparable damage; that for the three years last past and now one-third of the water flowing from the said well has been and is more than enough to properly irrigate the lands demised to the defendant and for his domestic purposes; that the usual, customary and only course and channel through which plaintiff has derived and received his water from said well has been through a certain ditch through which the defendant also receives his water in part; that the defendant has with force and arms from the 1st day of September, 1916, to the present time, prevented the plaintiff from taking any of the water flowing from the said well and has caused all of the water to flow on the lands demised to the defendant, and that two-thirds of said water has flowed into a storm sewer and been wasted and lost; that the defendant has no property to respond to a judgment for damages caused by said wrongful acts; that plaintiff has no adequate remedy at law, etc. To the bill of complaint are annexed and made parts thereof copies of the lease from said corporation to the defendant and from it to the plaintiff. In the premises of the lease to the defendant the lessor demises to the lessee the said four tracts of land, describing them, reserving a small tract, but without saying anything about privileges and appurtenances, while the habendum reads: “TO HAVE AND TO HOLD the above described premises, together with all rights, easements, privileges and appurtenances unto the lessee” etc. Then follows the covenant for the peaceable possession by the lessee; and the lessee covenants to pay the rent; to pay all taxes assessed against buildings erected by him and crops grown by him and to keep the premises in repair and comply with regulations of the board of health; to not make or suffer waste or unlawful use of the premises; to not assign the lease nor underlet the premises without the written consent of the lessor; to continuously cultivate the said lands in taro or other crop suitable to be raised on the premises; to keep the well clear of weeds and in good repair and condition; to not sell or permit water to be taken from said artesian well without the written consent of the lessor; to quietly surrender the premises at the end of his term. Then follows the stipulation: “IT IS HEREBY MUTUALLY AGREED by the parties herein, that the said lessee have the right to use as much water of the said artesian well on the lands hereby demised as shall be necessary for the purpose of irrigating the lands and for domestic purposes.” Upon the filing of the bill of complaint summons, containing an order requiring the defendant to appear and show cause why a temporary injunction should not be granted restraining him from interfering with the use by plaintiff of the water claimed by him from said well, issued and was served upon the defendant. To the order to show cause the defendant appeared and filed a response, signed and sworn to by him, in which he claimed the right under his lease “to use as much water from the artesian well on the lands demised by the said lease as may or shall be necessary for the purpose of irrigating the said lands and for domestic purposes.” In the return it is alleged: “That the rights of the plaintiff to any water from said well are subject to the prior right of the respondent herein as hereinabove set forth and more particularly appears by the written indenture of lease dated September 21, 1916, a copy of which is attached to plaintiff's bill of complaint, marked exhibit ‘Z’ which is referred to and made a part hereof.” The defendant then claimed in his return that all of the water flowing from the said well was necessary for the proper cultivation of the lands demised to him and for his domestic purposes. The return was filed October 19, 1916. The record before us does not show what disposition was made of the order to show cause, but after the return day thereof and on or about October 23, 1916, the defendant filed a demurrer to the bill of complaint upon the grounds (1) that the bill does not state facts sufficient to warrant relief in equity against respondent; (2) that there is no equity in the bill; (3) that it appears from the bill and exhibits that complainant has no ground or cause for equitable relief; and (4) “that it appears by exhibit ‘Y’ attached to said bill of complaint that respondent's lessor, to wit, The Chinese Young Men's Christian Association, reserved therein no right to sell or dispose of any water flowing from the artesian well described in said bill or any surplus of water therein to any person or persons other than respondent herein, or that the said lessor reserved to itself any water or surplus in said well either for its own use or for the use of any person other than respondent herein.” The circuit judge sustained the demurrer to the bill and made a decree dismissing the bill of complaint from which the plaintiff has appealed.

A correct determination of this appeal requires a construction of the lease from the lessor to the defendant. In case of conflict between the premises of a deed and the habendum the former controls. A lease, like any other contract, is to be construed so as to give effect to the intention of the parties without regard to the refinements of technical distinctions and the entire lease is to be construed and if possible effect given to every part of it, and this is especially true as to conditions expressed. The lease in question should not be given any more effect than the parties intended that it should have. No particular form of words is necessary to constitute a lease. Any language which shows the intention of the parties that the lessor will surrender his property and the lessee will take it for a specified term and upon stated conditions is sufficient. 1 Taylor's Landlord and Tenant, 8 ed. Sec. 159. The same learned author in section 273 says: “The intention of the party to the instrument, when clearly ascertained, will, of course, always control; but conditions and limitations are not to be raised by mere inference or argument. The distinctions on this subject which are to be found in the books are very subtle and artificial; and the construction of any contract will, after all, depend less upon artificial rules than upon the application of good sense and sound equity to the object and spirit of the contract in...