Gamalielson v. Hilo Sugar Co. , 1931 Haw. LEXIS 6 ( 1931 )

I concur in the conclusion reached by the court as set forth in the foregoing opinion. Defendant's motion for a nonsuit as therein disclosed was upon the ground that plaintiff's evidence showed that defendant had been in possession of the land described in the declaration for at least fifteen years, that this possession had not been explained and that such unexplained possession for the statutory period gave rise to a presumption of title in the defendant. Upon this motion the court ruled as follows: "From the state of the evidence and the law I think the motion for nonsuit should be granted and the motion is granted."

The proof lacked at least two essentials to a showing of title in the defendant by adverse possession, viz., (a) exclusiveness of defendant's possession and (b) claim of ownership by the defendant. See Ward v. Cochran, 150 U.S. 597, 609; Iona v.Uu, 16 Haw. 432, 434. Defendant in its brief does not claim that plaintiff's evidence shows exclusive possession by the defendant of the land described in the declaration; and as to claim of ownership of the same, defendant in its brief expressly admits that "we did not, during the trial, nor do we now, claim title in fee by adverse possession."

But, the defendant argues, "the judgment of nonsuit should be sustained if proper upon any theory of the law and evidence," and submits that it is sustainable on the theory that plaintiff's evidence showed affirmatively an easement by prescription on the part of the defendant in the land described in the declaration. Counsel aver that "the trial court decided the motion upon that theory." The motion, as above shown, was not made on that ground and the record does not disclose that it was sustained on any ground other than the one set forth in the motion. But even if, contrary to fact, we were to assume that a sufficiently defined easement in the defendant had been proved by plaintiff's evidence, that fact alone, at least in view of the issues made by the pleadings, would not be sufficient to defeat plaintiff's right of action. Jacobson v. Hayday, 83 N.J.L. 537, is in point. Quoting from pages 538 and 539 of the opinion of the court in that case: "Assuming, but not conceding, that, as defendant claims, this deed subjects plaintiff's land to an easement of way in favor of defendant, the situation, when the trial court directed the verdict, was that the plaintiff in ejectment had a paper title to the fee of the land, derived from an ancestor in title who had possession as well as title, while the defendant relied for justification of his plea to the right of exclusive possession upon an alleged right of way or easement to pass and repass over the land. If the defendant had clearly established the easement he claims, it would be no defence to this action, for a fee and an easement in an estate are independent rights when vested in different persons, and each may vindicate their respective rights by an action at law, the one to enforce his fee, and the other to ``protect' an interference with his easement, but a right of way over lands, held by another in fee, will not support a defence in an action in ejectment which rests upon a mere right of way, for the plaintiff has a right to assert his title to the fee, and the adjudication of that question in his favor will not destroy the right of the holder of such an easement. The judgment in such case, if in his favor, settles the plaintiff's right to possession, subject to the easement if it exists. Burnet v. Crane, 27 Vroom 285."

The rule above followed has had general recognition. "It is well settled, as a general rule, that an action of ejectment will lie by the owner of the fee to recover land subject to an easement or servitude; or, as the rule is sometimes stated, the fact that the defendant in an action of ejectment has an easement, or right in the nature of an easement, in the land sought to be recovered, does not bar the plaintiff's right of recovery." 9 R.C.L. 837; case note, 1 Ann. Cas. 863; see 19 C.J. 1076; see also Medeiros v. Koloa Sugar Co., 29 Haw. 43, 47.

For the foregoing reasons I agree that exception four should be sustained, and that the order granting a nonsuit should be set aside and a new trial granted.