Wailuku Sugar Co. v. Hawaiian Commercial & Sugar Co.

OPINION OF THE COURT BY PERRY, J. (Frear, C.J., dissenting.) This is a bill in equity for an injunction to restrain the respondent from digging a tunnel under, through or across certain land, situate at Wailuku, Maui, of which the complainant is alleged to be the owner. It is undisputed in this case that the complainant is the owner of the land described in Land Commission Award 3231, Apaña 1, issued to Opunui, and situate in said Wailuku. One of the sides of this Kuleana is described in the Award as running, “Hema 36° Ko. 1.22 Kh. e pili ana me Kahawai” (meaning the Iao stream). Complainant contends that by virtue of this element of the description the Award conveys the title to the land to the centre or thread of the stream, while the claim of the respondent is that the bed of the stream as covered at high water or in times of freshets is not included in the grant. It is clearly [584] shown by the evidence adduced at the trial below that the tunnel is under the bed of the stream as it exists at high water or in times of freshets and outside of the boundaries of the Kuleana if the courses and distances alone are followed in locating such boundaries; and it is only by adopting the rule contended for by the complainant, to-wit, that where an instrument of conveyance describes land as being bounded “by” or “along” a stream the grantee thereby obtains title as far as the centre or thread of the stream, that the tunnel can be held to be on or under the complainant’s land. The rule referred to is at best one of construction only. 2 Devlin, Deeds, Sec. 1025. It is not a rule of law, although some courts would seem to so regard it judging from some expressions used in the decisions and from the extent to which its application has been carried. Two reasons are usually assigned for the rule, one of which is that in a great majority of cases by its adoption the intention of the grantor will be effectuated. The second, one of policy, is thus stated by Bedfield, J., in Buck v. Squiers, 22 Vt. 484: “Its chief object is to prevent the existence of innumerable strips and gores of land along the margins of streams and highways, to which the title for generations shall remain in abeyance, and then, upon the happening of some unexpected event, and one, consequently, not in express terms provided for in the title deeds, a bootless, almost objectless, litigation shall spring up, to vex and harass those who, in good faith, had supposed themselves secure from such embarrassment.” Nevertheless, it remains true, in spite of these considerations of policy that one who owns land to the centre of a stream or inclusive of the whole stream may convey to another the portion of such land extending to the bank only and- exclusive of the bed of the stream. “It is equally competent for the riparian proprietor to sell his upland to the top or edge of the bank of a river and to reserve the stream or flats below high water mark, if' he does it by clear and specific boundaries. * * * He may also convey the bed of a. stream separate from the lands which bound it.” — 3 Kent’s Com., p. 435. See also Paine v. Storage [585] Co., 71 Fed. 630; Hatch v. Dwight, 17 Mass. 288, 289; and Bradford v. Cressey, 35 Me. 13. Further, the rule, as stated by practically all the authorities, is subject to the limitation that the presumption that the grantor intended to convey to the thread of the stream is prima facie only and may be rebutted,- — in other words, that if it clearly appears from the language of the conveyance or from any map or plat made a part thereof or, perhaps, from other circumstances, that it was the intent of the grantor to convey only as far as and not including the bed of the stream, the deed will be so construed as to carry out that intent. Assuming, then, but not deciding, that the presumption hereinabove referred to arises in such eases, is there sufficient in the evidence in this particular case to rebut it? We are of the opinion that there is. The word “Kahawai” means not only the flowing stream but also the bed or channel of the stream including the portion of such channel covered only in times of high water or of freshets. “E pili ana” means “adjoining” and the úse of these words indicates that the object referred to as being adjoined is excluded. The same expression, “e pili ana,” is used in every one of the ten courses in the description, referring in ■each instance to pieces of land which, clearly, it was intended to exclude. We believe that in the call under consideration the words were employed in the same sense and that they show an intent to exclude the “Kahawai.” Further, the testimony shows that, regarding the bed of the stream as excluded and following the courses and distances given, the description closes and is consistent with itself and that the shape of the Kuleana and the references in its description to adjoining pieces, are such that an initial point for the survey elsewhere than on the side towards the stream can be and has been definitely located on the ground. With the starting point thus determined and the courses and distances being followed, the line on the side in question adjoins and excludes the channel of the stream. A diagram, of which a copy is here inserted, is contained in the original Award, Number 3231, issued to Opunui in 1852, [586] over tlie signatures of the members of the Land Commission and may, therefore, be considered as a part of the Award itself. It seems to us that the position of the line herein marked AB with reference to the drawing representing the stream, confirms our construction of the language of the description and shows beyond doubt that the actual intention of the parties was to exclude the bed of the stream. The decision in the case of Notley v. Kukaiau Plantation Co., 11 Haw. 525, does not lay down any general rule which can be said to control in the case at bar. That case was decided upon its own particular circumstances and the Court specifically .said, “Each case must be considered by itself.” In our opinion the complainant has not shown title to the land crossed by the tunnel. As to whether or not, under the circumstances of this case, a court of equity may determine such a question of title as is involved herein, we need not say. If it has no jurisdiction, the bill must for that reason be dismissed; on the other hand, if it has such jurisdiction, still, under the views held and above expressed by us on the main issue, the same result is reached. So, also, the other questions argued need not be considered. Kinney,, Ballou é MeOlanahan for complainant. A. 8. Hartwell for respondent. For the reasons hereinabove stated, the decree appealed from as affirmed.