Henry v. Ahlo

Opinion oe the Court, by Bickerton, J. This matter comes here on appeal from the Commissioner of Private Ways for the District of Koolaupoko, Island of [491] Oaim. The plaintiff owns a knleana described as apana 1, B. P. 1878, L. C. A. 9639, situated at Waikalua, Kaneohe, District of Koolaupoko. This piece of land is a short distance from the government road, to reach which, he (the plaintiff) has to cross a tract of crown land which is under lease to the defendant, who has fenced along the said government road thereby preventing plaintiff from going to or coming from his land. The commissioner, after due proceedings were had, decided that the plaintiff was entitled to have a road ten feet wide running from the government road between two certain kuleanas, and continuing on to plaintiff’s land. This road is a matter of necessity to the plaintiff. He must have a way to and from his land. It is a right which he acquired with the land. There may not have been a road of a certain width, and perhaps not always in exactly the same location; it may have only been a trail to the plaintiff’s land across the crown laud. The location is created by use ; the plaintiff could not have a number of roads ; he is only-entitled to one, and the one he had been using was closed up by defendant, and when the matter came before the commissioner it devolved on him to direct where the location of the road should be, also how wide it should be, at the same time taking into consideration the necessity for the road and the best location to place it, so as not to interfere, more than was necessary, with the occupation of laud over which the road •passed. We do not regard it necessary to consider the question of prescriptive right, as this is a case of a way of necessity. This question of right of way is fully discussed (n the case of Lulia Kalaukoa vs. C. Keawe, decided by this Court July 14th, 1893. The court there holds, in speaking of where the existence of a right of way is only provided for, that the location, width. &c., “ must be ascertained by evidence, such as the condition, or character of the lands and the uses made of them, or the acts or acquiescence of the parties.” The reasoning in that case is very fully sustained by a large number of authorities there cited, and applies in every way to the case at bar. J. A. Magoon, for plaintiff. W. G. A chi, for defendant. We are of the opinion that the decision of the commissioner was right in ordering a road opened where he did. It is not in any way unreasonable and conforms to the necessities of the case. This matter coming here on appeal, we order that a road be opened ten feet wide running as near as. possible in a straight line from plaintiff’s land and passing between the-kuleanas of Kumalae and Kaailua to the government road; the defendant to maintain a gate of not less than ten feet wide where this way enters the government road, the said gate to be free to the use of the plaintiff at all times. The appeal is dismissed.