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10 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