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13 THE PACIFIC COMMERCIAL ADVERTISER HONOLULU, MARCH 20, 1S0S. -A Q. And you rely upon what Mr. Vander Naillen told yon? A. I do. Mr. Vander Naillen occupies a very responsible position with us and would not he entitled to occupy it unless his word could be taken bv me. Q. So as you look at it, by putting in the crossing as you did, at the time it was done you avoided delavs and that the method you saw nothing in the method calculated to increase the chance of a breach of the peace? A. Your question is a leading one. No, I saw nothing in the method calculated to bring about ;i breach of the peace. I certainly would not desire my men or permit them to bring about a breach of the peace, even thougli their rights there were assured; moreover, 1 assume that the same regard for the law is maintained and upheld by your company. Q. In that connection you consider that the efforts made bv these Mr. Hartwell. Will you allow me to ask what is the pos sible purport of the examination now proposed, and with re ference to what charge of misrepresentation, concealment or bad faith is this proposed inquiry? Mr. Kinney.- May it please the Court I wish to charge that I have not the mental faith to accept and swallow that resolu tion for which I believe the witness is responsible, which says, as the Kahului Railroad Company is occupying its track bv day, it would be well we think that this crossing was made in the night time so as to interfere as little as possible with the Kahului Railroad Company. A. I have no doubt that the crossing itself was a matter that occupied but very little time, and that the fear of an injunction in the dav time' mus1 needs have been a very slight one even though the work had been done in the day. The Court. As you remember my ruling was that the affi davits ought to be produced before any oral evidence was admitted and then I understand that Mr. Wheeler desired to waive that and go on with his oral statement and upon that understanding and consent we are now proceeding. Of course if you desire to have the affidavits filed on the point that has not been touched, that is another matter. Mr. Wheeler. Apparently my testimony has been misun derstood. With reference to the order that was given you will observe that we thought it were well if the crossing were made in the night as the Kahului Railroad Company is occupy ing its tracks by day; also that it were made in thenight so as not to interfere with the operation of the cars of the said com pany. Now that is the order given. I am asked as to my reasons for giving that order. I understand that question to mean and understand it noy to mean why I thought it were well that that were done in the night. I endeavored to convey to this Court my reason for understanding that it were weil if it were done in the night. I did not mean to testify that it was a simple matter of accommodation and desire to extend something of favor to the Kahului Railroad Company, but that it was a desire not to invade any rights and give any legal cause for complaint at our conduct by the Kahului Railroad Company. I understood that we hail a perfect right to be there; that we had a perfect right to cross there, but we did not have a right to cross there in any manner that would inter fere with the use of that easement, and this road being in constant use by day in drawing the sugar that is now being manufactured at Wailuku should we proceed to put our cross ing in by day so as to interfere with, that traffic, or with the passenger traffic, we would lay ourselves liable either in dam ages or in injunction or in some other way if we interfered with the use of that easement by the defendant company. That is why I thought it were well if that were made in the night; not to avoid an inquiry by a Court into the respective rights of the parties, not to prevent the issuance of any proper process to restrain us from putting that road across there in a proper proceeding, but to make an absence of any ground upon wilich any reputable attorney would seek to obtain an injunc tion. A reputable attorney might have said, if you tear up this road by day or are threatening to do it we are entitled to enjoin you because you will interfere with our traffic and witli the public traffic; but if the crossing were made in a proper manner and; at night, then we would give no legal or equitable cause for complaint and the proceeding would not lay us liable in any damages. Those are the reasons wiiy I thought it were well, those were the reasons that moved me to give that order. If we had given any cause for the issuance of an injunction having ulterior motives to perform, an attorney who was not following his full duty to the Court might upon that pretense and pretext have kept us away from making that improvement that we were lawfully entitled to make, for a long time, whereas if we made it in a lawful manner and without infring ing any rights, legal or equitable, there could be no such cause for complaint, there would not be any such interference. If we did what we did lawfully and properly and without inter fering with any right, we had nothing to fear; if on the other hand we went in the day time and sought to cross it might lead to the difficulties that I have mentioned because we then might be invading a right. That is all that I wish to say in explanation of why that order was given in that form. Mr. Kinney. Q. What were your instructions to the men in case Mr. Berg came out and said that the Kahului Railroad Company had a perfect legal right to that track and you had no right? A. I gave no instructions whatever; the matter was given as you see in that order to the discretion of our chief engineer. You have the order there. Q. Did none of them say to you, supposing we get into a row then what shall we do, what have we the right to do? A. You apparently fail to understand me, as I was not over there at the time nor at the time that the order was given, I was here and sawT none of them and gave the order as you see. Q. Was not the matter discussed while you were on the Island of Maui and arranged there subject to consultation here in Honolulu with counsel? A. No sir, it was not. The subject of building a railroad there was discussed. Q. But the crossing? A. The question of crossing there at night was not discussed. Q. Who took up that order? A. The Government mail. Q. And who did you communicate with? A. To Mr. Vander Naillen as his affidavit shows. Q. Directly with him?" A. There was a supplemental let ter of instruction given to Mr. Boote by the president, of which I had knowledge, which told him to furnish such men and materials for the work as necessary, that being a matter within the discretion of the superintendent. Q. None of the officers besides the president and you as director were down there? A. Not at that time sir. Q. At the time the letter was sent? A. Not at that time. Q. How often do the trains run to Wailuku? A. I cannot tell you how often, but in the carriage of sugar I suppose that the freight is passing frequently. I suppose that the passes ger train is passing frequently. Q. Did you make any inquiries about that? A. No, only what I saw" when I was on the Island of Maui, the number of trains passing up and down to Taia, Q. To Wailuku? A. Toward Wailuku, I did not see the train on the track toward Wailuku, however I was informed that they were manufacturing sugar in Wailuku. Q. How long would it take do you understand to put in a crossing of that kind? A. At the time that I gave that order, I had no idea as to how long it would take, and I had no idea as to the particular means that would be used in put ting My instruction is there and speak the crossing across. for itself. Q. You have in your evidence already spoken about such a thing taking only a short time; what was in your mind at that time? A. When I gave that evidence. The fact is that 1 have since been informed by Mr. Vander Naillen that the crossing was put in in a short time. Q. How many hours? A. He told me that the whole piece of work was performed in a I think he told me that they reached the track by about eleven oYlock at night. I do not know just what time he mentioned, but I do recall that I saw a statement in the paper purporting To ln from Mr. Berg the manager over there, stating that he was around there about eleven o'clock and that the crossing was already iu; that is why I said I thought it only took a short time. . Q. Alongside the crossing track was put in on either side for some distance? A. That was my information; that was my instruction as you see. Q. Mr. Wheeler, when did you first make sufficient examina tion of that grant from Claus Spreckels to the Kahului Rail road Company, and the crown land grant, to come to a fixed conclusion as to the relative rights of the Kahului Railroad Company and the Hawaiian Commercial in this particular piece of ground where the crossing was put in, how long ago? A. That is difficult for me to say. I have seen that grant, I think a copy of it many months ago and had a general knowl edge of it. Immediately after my arrival here; again in look ing over the papers in the condemnation suit I saw a copy of it there; again I saw a copy in Judge Hartwell's office. On each of those occasions I read it and was impressed with what I understood from its construction to be the rights of the parties. Q. From his construction? A. From my construction. Q. Can you say whether prior to this trip you had come definitely to the conclusion that the Kahului Railroad Com pany had no rights along that track leading A. I can tell you positively that my knowledge as to the rights that you Itad there did'not come until after I came down here, and while I think that probably from an examination of the papers in my possession I inferred that they had no right there because of finding nothing giving them as I understood any right, I think that it was not until I received information from the searcher as to the documents on record that I drewr the con clusion that there was nothing to show that they had any right and therefore they had not any right. Q. And how long ago was that that you saw such a report? A. I cannot recall that date. Q. About howT long ago? A. The time has gone so rapid ly since I have been here that I can hardly say. However, I can tell you with reference to certain dates. It has been since my return from Maui, and that I think has been along about February 20th, sometime along there, because it was immedi ately after my return that I ordered the abstract to be made. Q. Now going to the question of irreparable damage right from the question of laying this track, where has the freight of the Hawaiian Commercial been handled heretofore? Mr. Wheeler. What is the charge that I am answering now? Mr. Kinney. The question whether the Court was fully ap prised by the pleadings and papers that you had no wharf; that putting in this wharf did not take you to any wharf, and that you had facilities of your own choice before that of hand ling all this freight in a reasonable manner, in a reasonable business-like manner. Mr. Wheeler. You are not referring now to anything in my affidavit? Mr. Kinney. Your affidavit I think refers to the amount of tonnage: "That the said Hawaiian Commercial and Sugar "Company conducts stores at various places upon its planta tion, and therein transacts a general merchandise business; "that in the course of each and every year the said Hawaiian "Commercial and Sugar Company moves many thousand tons "of freight of various descriptions ipon and over its railroad "tracks; that the said freight includes goods, wares and mer chandise for its stores, supplies and materials for its mills, 'machine shops, railways and coal, iron pipe, machinery, lum- ber, sugar manufactured bv its mills, and divers other arti cles of merchandise; that the said corporation is so desirous "of regulating its business affairs that it can receive and trans port its freight directly from the seaboard to its headquarters "and its various supply stations upon its said plantation; and "that the railroad constructed as aforesaid is constructed pur suant to the aforesaid purpose; that the deponent estimates "that the amount of freight to be carried upon and over said "railroad from year to year will exceed twenty -five thousand "tons during each and" every year. And deponent further "avers upon and according to his information and belief, that "it. would be impossible to accurately measure the damages "which would be sustained by the Hawaiian Commercial and "Sugar Company in the event that said company should be "prevented by the Kahului Railroad Company from maintain "ing and using the track so constructed by said Hawaiian "Commercial and Sugar Company between the warehouses of "the said Hawaiian Commercial and Sugar Company and the "sea shore; and deponent therefore avers upon and according "to his information and belief that the damages which the "said Hawaiian Commercial and Sugar Company would sus tain in the event of such interference or prevention would be "irreparable." You remember now do you not? A. Oh 1 remembered that before. Q. How soon do you plan or understand you can have it ready? A. My discussions with the engineer of the company are such that lead me to conclude that with the material that we have on hand for the purpose, we can and will serve all of our temporary needs within thirty days. That, however, is conditioned upon our being able to use this crossing to get our materials to the water. Q. In the meantime vour freight is being handled by con tract with the Kahului Railroad Company? A. In the mean time our freight is being handled by the Kahului Railroad Company so long as the Kahului Railroad Company sees fit to do its duty and handle that freight. If on the other hand through captiousness or bad advice or through temper that railroad company should decline to grant us our legal rights, refusing to exercise its functions as a common carrier, we upon resorting to legal process might compel them to do it, but the damage to us would be irreparable. Q. The danger to you would result from our refusing to carrv out our duties as common carrier? A. That is one way in which injury would result to us. Injury would result to us financially in many ways, in ways which are difficult to esti mate in my opinion. Q. What is the term of that contract between you and the Kahului Railroad Company; a terminable bill is it? A. 1 am not familiar with the fact that there is any contract be tween us. Q. Special contract as to the price? A. I am not familiar with the fact that there is any special contract as to the price. I know it has been hauling our freights for a certain price. Q. What is that price? A. Well it ditTers upon different articles. I don't know, I do not carry it all in my mind. Q. About seventy-five cents to a dollar a ton is it not from Spreckelsville put aboard the vessels? A. Sometimes it differs according to whether it is heavy machinery or lumber and things of that kind. Q. Which rates have been specially agreed upon between Spreekels and the Kahului Railroad Company? A. No it has never been agreed upon except that the thing has been done up to date with the knowledge of the directors of the company. Q. The freight rates have been formally agreed to? A. I do not understand that they have, that the freight rates have been formally agreed to. Q. Is it not a fact that you have made the Kahului Railroad Company cut down those rates to such tin extent that has made it very questionable whether it is worth their while, whether they should continue carrying your freight? A. No.-not that. On the other hand we con sider that they make a tremendous profit from us. The Court. Is there anything which vou wish to add? A. No. If there is anything iu which my denial is not full and explicit in the mind of your Honor I 'desire to be understood as denying very emphatically and in toto. Mr. Hartwell. There is only one question, which I now think of which I would like to ask Mr. Wheeler with refer ence to what he stated about having given no notice. Mr. John F. Hackfeld agent on whom process is served for the Hawaiian Commercial and Sugar Company has spoken to you or you to him upon the claim of the Kahului Railroad Com pany or not? Mr. Kinney. Refore or after this matter? A Prior to the filing of the injunction suit here I had a talk with Mr. Hack feld. Mr. Hartwell. And Mr. Hackfeld's position besides that which I have mentioned is what? A. Well I understand him to be connected with the company which runs over there. I do not understand exactly the ramifications between the Ka hului Railroad Company and the Wilder Steamship Company. I understand Mr. Hackfeld to be the vice-president of the Wilder Steamship Company. Q. Rut in whose interest was any inquiry made by him if any? A. Well I had supposed when I said what I did, that I was talking to someone whose business interests were connected with those of the defendant corporation. I did de clare to Mr. Hackfeld that I had made an examination, and that so far as I could see, the Kahului Railroad Company had no title to the particular lands upon which this controversy has arisen or to the right of way thereon, and told Mr. Hack feld that I trusted his large interests were based upon more secure holdings than that particular claim seemed to be. Q. That is just before the injunction was issued? A. Well possibly two or three days before. Mr. Kinney. Was that before the crossing was made? A No, that was after the crossing was made, but before the in junction was issued. What occasioned the conversation was the question was asked or he matter came up in some way that there had been a publication of claim that we had crossed the road, the publication of the fact that we had crossed the road. Q. Hackfeld & Company are the agents of the Hawaiian Commercial? A. In a limited sense, ves. Q. They are the only agents you have in Honolulu are they not? A. They are the only Honolulu agents that we have in one sense; w-e have our attorney here, but they are the general agents of the corporation in another sense. Q. Did you have that conversation with Mr. Hackfeld and make that remark with the .intention of giving notice to the Kahului Railroad Company? A. Oh, no, I had no intention of giving notice thereby to the Kahului Railroad Company, I was simply stating the fact as I knew it existed- Q. I suppose you know John F. Hackfeld well enough to know that anything you trust to him as agent of the Hawai ian Commercial Company, that you never could get anything out of John F. Hackfeld, that we never get anything out of John F. Hackfeld as to that was said? A. On the other hand in making the statement as I did to Mr. John F. Hack feld, I should consider he was at perfect liberty to use that for the benefit of any corporation with which he vvas con nected in a fiduciary relation. Q. You expressed to Mr. Hackfeld the hope that his inter ests were not affected by this disclosure? A. Oh, no, I did not. ' , ; March 14th, 1898. Mr. Wheeler. Referring on pages 27 and 28, I say among other things: "In other words it is very difficult for a man to "give every motive that has gone from his mind. So far as I "can I will explain frankly to this Court and to you the mo "fives that occurred to me. I believe that we had a right and "have an absolute right to use our fee in that land in the way "in which we have used it. I did not believe that we would "have a right to use our fee in that land by crossing the tracks "in such a way as to interfere with the easement or use which "your company is exercising there as a common carrier of pas sengers, which is a public use; and if we proceeded in the day "time to cross so that we impeded the running of your trains, "T have but little doubt that a Court of equity regarding the "public convenience as well as your own would be quick to "enjoin us in the work." Again on page 29 and as a part and parcel of the same answer I say: "Let me answer your question specifically. "Night time was not selected to avoid interference by in junction with this work, because as to that we have no doubt "but that the showing could not be made sufficient if the work "were to be done in a workmanlike manner to entitle you to "injunction; to do it in the day time in a manner which inter fered with your easement might entitle you to injunction." I do not wish to be understood from those two expressions as limiting the mental processes which I was endeavoring to describe to an injunction proceeding while the particular work Of crossing was going on; the impression which I en deavored to convey to the Court is this, possibly it is difficult to express or describe any mental process, anil perhaps my language even now will not be as apt as I should desire. The impression which I desire to convey to the Court is this: That if in a manner which did actually interfere with the operation of those trains this work should be done, it would afford a pretext, either while the work was going on or after the crossing had been completed' for an allegation and representa tion to the Court that we were actually interfering with the use of the easement, a pretext which would be potent in se curing an injunction either as against the continuance of the work itself or against the operation of the road so constructed for the purposes for which it was intended. In other wrords the apparent construction might be placed upon this that I referred to an injunction merely before the accomplishment of the work. I wish the Court to understand that the mental process involved the idea as well of the injunction restraining the user of the work after it had been accomplished. In other words, the interference of itself would be a circumstance which might lead to the granting of an injunction, when no such actual interference and no showing to that effect might and doubtless would be the occasion of a refusal of equitable relief. Mr. Kinney. You knew that the track was laid with the intention of using it during the day, the crossing and the new track was laid with the intention of using it during the day? A. Of course. Q. You read the bill did you? A. The bill of complaint. Q. Yes. A. I did sir. Q. Did you draft it? A. I drafted the bill. It was exam ined after it was accomplished. The bill however was drafted bv me verv hastilv let me say. (Signed) J. W. JONES, Stenographer Supreme and Circuit Courts.