The Pacific commercial advertiser. [volume], March 26, 1898, Page 10, Image 10

About The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921

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THE PACIFIC COMMERCIAL ADVERTISER : HONOLULU, MARCH 2G, 1S9S.
of the kind. On the other hand, the information as conveyed
to me was. that it was purely a question of title.
Q. The title to the right of way? A. The title to all the
property being occupied by him at that time.
Q. An objection that would destroy the title of all, of all
lie had? A. I have given vou mv information.
Q. Didn't you say Mr. Wheeler that what Claus Spreckels
said was with reference for instance to Hobron's right to Ka
hului lands, which went to this question: I am trying to get at
what information vou received as to anv talk or understanding
between Claus Spreckels and Hobron in reference to this parti
cular right of way? A. I think that I have already replied
that the understanding that I gathered from the conversation
or my informant, and had at the time that I made the affidavit
was, that Mr. Hobron was so doubtful of all of the titles on
lands which he was occupying there that it moved him to sell
under the circumstances to which I have testified.
Q. Rut no particular information came to you in reference
to this particular of his possession, this right of way? A.
None other than I have testified to.
Q. Now could you indicate on the map here about where
that crossing is, about, according to your information and
belief? A. Yes sir, I can give you my present information
upon that certainly.
Q. Ybrr:will please do so. There is Kahului harbor upon
the map;) there is the warehouse as I understand it. A. I
understand that this is the Hawaiian Commercial and Sugar
Company's warehouse. I do not wish to be understood that
a portion of this map or anything herein is correct. I am
assuming that that is the Hawaiian Commercial and Sugar
Company's warehouse. From that warehouse, according to
my knowledge, information and belief there has for many
years extended a railroad in this general direction following
the road designated on this map to Makawao. And it is my
understanding that several hundred feet above the point
where this warehouse is met, the new line of track was ex
tended in this direction across
Q. Across the road? A. I have no information upon that
point as to whether it crosses the road there or not. There
has been reference in some of my information to its crossing
one road. I do not see the Spreckels' line of pier designated
here.
Q. There is the present wharf; the pier would be some
where down there. A. I 'cannot state the distance, not un
derstanding the proportions here; it is my understanding,
however, that it crosses here and comes directly down to the
beach here.
Q. Crossing the Kahului track? A. Crossing the Kahu
lui track. N
Q. At the point marked X? A. Approximately I should
ihink that will give a fair idea to counsel and the Court. I
might be a quarter of an inch out according to the map by the
square.
Q. You notice that Kahului as indicated on the Govern
ment map extends into the land of Kalua, do you not, Mr.
Parker's land? A. Well I do not know- that there are any
Mr. Hartwell. What is that, an ahupuaa?
Mr. Kinney. That is an ili.
A. I do not understand that there are any boundaries of
any kind upon any map. There are none so far as I have seen
of Kahului.
Q. No not of Kahului, but of Kalua, Sam Parker's land
that you referred to. A. I can say and my understanding
was that Sam Parker's land was approached and entered by
this railroad about where Mr. Parker's land adjoined the land
of the Hawaiian Commercial Company.
Q. Were you informed by anyone that Mr. Parker's land
ran into Kahului settlement so as to take in buildings there?
A. I never had occasion to inquire and received no informa
tion upon that subject.
Q. Did you have any information leading you to by which
you could estimate how many feet of track happened to run
towards Wailuku before it struck the land of Kalua? A.
Will you kindly repeat that question?
Q. Did you receive any information upon which you could
estimate how many feet away how many feet the road would
have to run towards Wailuku before it struck Kalua?
Mr. Hartwell. That is, had lie any means of estimating
from point to point?
Mr. Kinney. Q. Take it right at the wharf. From the
wharf how many feet towards Wailuku before you struck the
land of Kalua; a straight line? A. I had no information,
but I desire fully to explain my answer in that particular. As
I understand that this question is directed towards my answer
concerning the grant of Claus Spreckels to this road. I have
always endeavored to impress upon the Court the understand
ing that the road to which I now point, from the wharf at Ka
hului, was already built and in operation and was in the posi
tion indicated upon this map at a time prior to the time Claus
Spreckels made that grant, and in interpreting that grant I
have been led with reference to that understanding, believing
that it related to the road that was to be constructed, as its
terms indicate, and not to any road that had been previously
constructed. Nor did it occur to me, nor does it occur to me
now7 that that was intended to be or is a grant authorizing the
placing of the road that had been in existence some time prior
to its making, and extending from Kahului as I understand
the term used in this deed in a westerly direction toward Wai
luku. I understand the term "at Kahului" to mean from the
terminus of that new road that was built under that grant. I
did not understand it to mean or that it does mean that a
right of way was given to run on Sam Parker's land east
ward. Q. Do you know where the engines of the Kahului Rail-
road Company, or were you informed where the engines of the
Kahului Railroad Company got their water for engine pur
poses? A. Only in a general way I am informed that they
have been permitted to take water for engine purposes from
the Hawaiian Commercial Company's Haiku ditch.
Q. And you never were informed that they start with
water from Wailuku? A. What do vou sav?
Q. That they use water from Wailuku, you never received
that information? A. No I never have received such infor
mation. Q. Do you know that Spreckels owns stores A. Per
mit me to say this, I do not wish to be misunderstood. I as
sume that any long line of railroad has to have alonjr its wav
watering places, and if I had ever been called upon to consider
it I should have assumed and believed as I now believe that
there must be some places where the engines get water over
on the Wailuku side.
Q. Do you know where the town of Kahului gets its wa
ter? A. No, I do not. You speak of the town of Kahului.
Q. Your own employees living there where they get the
water? A. No, I cannot answer you that. I am under the
impression that it is brought there, but whether it is brought
from our own wells or Paia's wells or Wailuku I do not know,
I have no particular information on that subject.. I saw there
that the water was peddled-in barrels and purchased and the
amount paid per barrel was told me, but the source of the
water supply was not ;;ien; '
Q. You did not know that it was Wailuku water at all?
A. No.
Q. Do I understand you to take the position that accord
ing to your information what do you understand the agree
ment to be or the intention to be in reference to this strip
here whether according to the map it shows
Mr. Hartwell Do you mean to ask the witness's construc
tion as to this grant here?
Mr. Kinney Yes. He stated he did not believe that it ever
was intended, not merely that it has not effected any such
intention if such there wTas, but there never was such an inten
tion. Q. What as you understand was the intention and under
standing between Claus Spreckels and Hobron with reference
to this strip here, a matter I think of eight hundred feet? A
Well that is purely, Mr. Kinney, a matter of inference. I will
give you the best information I am able to drawT from the
facts and circumstances as I got them. I have already given
yourself and the Court to understand the facts upon which I
base some of those inferences. My information is that
through the lands of Mr. Parker this road was built without
asking previous permission of him the owner, and that he
subsequently made some arrangements with reference to it.
I believe that when Claus Spreckels w ent over to Maui, and
this of course is not based on a knowledge of many facts, it
is inference drawn from isolated facts, that when he first
rented from the Crown Land Commissioners the Wailuku
Commons, that he found this road constructed there, or that
if he did not, he assumed that it was constructed with the
permission of the Crown Land Commissioners, and that, with
out making any further inquiry than I as a director of this
company, having been a director for four years past, have had
occasion to make. However, it was proposed to build a new
road, he was approached upon the subject no doubt and made
that agreement.
Q. Did you receive no information that Hobron went up
there before ever a rail was laid, Hobron went up there at
Spreckels' invitation and laid out the buoys here in Kahului
harbor and adjusted the whole matter of this right of way
before ever a rail was laid? A. No sir.
A. Mv first in-
Q. You received no such information?
formation comes from your suggestion.
Q. Did you make inquiry as to whether Claus Spreckels
visited Kahului while this Wailuku road wras being construct
ed? A. I had no information upon that subject whatever.
Q. Did you make any inquiry? A. No I did not at any
time direct any questions to that particular end, for I did not
have that in mind at any time. But in talking with Mr. Mon
sarrat with reference to the time that this road was con
structed, he gave me the information that he was working
for Mr. Schussler at that time, and that a proposition was
made to him bv Mr. Hobron to survev lines for that road, and
that he declined to do it on account of some business arrange
ment. Q. That who declined to do it? A. Mr. Monsarrat.
Q. Because of some relations with Hobron? A. I do not
just know what the terms were.
Q. Did your information go to this extent, that Herman
Schussler was the agent of Claus Spreckels and came down
here really to lay out this plantation and get water? A. Yes
sir, I understand that.
Q. And that Herman Schussler had general charge? A.
I have understood that.
Q. And the paper charged you with the knowledge of the
fact that Schussler was assuming to act under power of attor
ney of Claus Spreckels? A. Of course I have seen that.
Q. You have had no occasion to doubt that he was so act
ing? A. Oh no.
Q. Did it occur to you that Schussler the agent of Claus
Spreckels was present at Kahului all the time that this road
was being laid from Kahului to Wailuku? A. No, that I did
not understand.
Q. Did you understand that it was not so? A. No. On
the other hand I cannot say that I did not understand any
thing about it one way or the other. The fact that Mr. Hob
ron in the one case would secure by express grant the right
from Schussler was of itself to me and is today, now, an
indication that he did not get any permission fi'om Mr. Schuss
ler or he would have had it in writing.
Q. You admit do you not that if Schussler was there on the
spot at the time this railroad was started towards Wailuku,
and that he acting for Mr. Spreckels gave them permission to
build out towards Wailuku as they afterwards built, and
promised them that when the occasion came and opportunity
offered that general authority would be given, anil that with
the knowledge of where this road had been already built he
signed that paper, that that would have some relation upon
our rights to maintain that track from Kahului towards Wai--luku?
A. Well of course you are calling for a conclusion1
based upon your own premises. There might be an equity
there, I am not prepared to say there would not be. Periiiit
me to say however, that upon the construction of that agree
ment or of the facts and circumstances had I known themv
and understood them as vou would infer that they are, not aa
you know that they are, but as you infer that they are, the
only change or modification that would have been made in the
request for the injunction would have been an allegation?
based upon the covenant in that document; that it was cove
nanted and agreed that we might make any future inprove
ment, that. the document was nothing more than a grant of an
easement, that the fee of the land was still in us, that we had
a right to use it in any way which would not substantially
interfere with the easement granted, and that there was now a
threat, although we were using it lawfully and properly, sW.
force and arms to force it from our use when we were using,
it in a lawful and proper way without interfering with the
easement granted. Upon your assumption upon the facts it
makes no difference in the injunction as I understand it. In
other words, I desire to impress the Court with that, because
the contention here is one of concealment from the Court. 1
consider that we would be entitled to the injunction, and the;
construction of concealment is impossible under that hj'poth
esis. Q. Mr. Wheeler taking this map and now referring to your
proposition that the relations between Schussler and Hobron
might have effectuated, might certainly have released u& from
being trespassers, you turn to this proposition, that they re
served the right to make improvements now' or hereafter on
said land; what land do you say that refers to, said land?
A. If you are correct in your construction that that grant
might refer to any land west or easterly rather of SamueL
Paiker's land, I would say, that that covenant then and in
that case referred to the entire route of the road. If, on the
other hand, I am correct in my construction, the covenant
does not apply and you are there without right.
Q. Does this instrument refer to certain land& set apart
for the cultivation of cane? A. It does.
Q. Is this land down here at Kahului near this crossing
suitable for cane or it is sandy soil unfit for cane cultivation?
A. Of course I cannot exactly inform you as to that, my im
pression would be that it wTould be impracticable to use it al
though I think there is soil there probably as good as some of
the soil that we are actually using under irrigation at the.
present time.
Q. None of your information led you to believe that that
was part of the land set apart? A. Oh, no.
Q. "Now this is to certify that I, Claus Spreckels after
having obtained from the Crown Land Commissioners the
privilege of granting this right of way over said land in con
sideration of the annual rental of one dollar, hereby do grant
to said Thomas H. Hobron the right to construct and maintain
over said land a single line of railroad track for the term of
my lease, provided that it is constructed and in running order
within two years from date and that the route of said rail
road does not cross any of the lands set apart by me for the
cultivation of sugar cane and other crops, nor in any manner
whatsovier interfere with the fences, buildings, ditches, crops
and other improvements now on said lands or hereafter to be
made thereon." Do you see a possibility of a construction in.
that reference to improvements now or hereafter to be put on
the land to refer to the land set apart for cane. A. I do not
see any possibility for any sensible construction to that effect.
I take it that you are now referring to any ditches, fences or
any other improvements, that you are not referring to any
particular portion that may be set apart for sugar, but are
referring to any particular portion that may be set apart for
ditches or buildings, wherever it may be.
Q. Do you understand that if Claus Spreckels saw fit to
put a residence right in the middle of the track he might do
so? A. I take it no man does, but if Mr. Claus Spreckels or
his successors in interest desired to, for the proper and legiti
mate use of the corporation, cross that track at any place they
would be permitted to do so in a reasonable manner provided
they did not interfere with the easement; that they would
be permitted to lay down a railroad crossing just as I am in
formed and verily believe they have done in at least three
different places without question since that agreement was
made. Q. By agreement was it not and by request? A. I do not
understand that it was by agreement. My information is that
if they want to put in a crossing, they go and do it without
question and do it in a legitimate and proper manner so as to
avoid any accident at the crossing.
Q. Who was your informant? A. Mr. Vander Naillen.
Q. The engineer of the Hawaiian Commerdal Company?
A. Yes sir.
Q. He specifically stated that they had putin crossings
without agreement or request? A. I asked himand he told
me that that was his understanding.
Q. His understanding. A. ne has been there for several
years. He did not tell me specifically that any crossings had
I