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THE IVADinn COMMEKCIAL ADVERTISER: TinxoUTMT, APRIL 20, 1899. IN THE SUPREME COURT OF THE HAWAIIAN ISLANDS. Jcn-e Tionsr, 1S9S. t HAWAIIAN COMMERCIAL & SUGAR COMPANY WAILUKU SUGAIi COMPANY. r Appeal from Circuit Jcikjk, First Circuit. Submitted ox Fi:i:tjieb Akgumext April C, 1S99. Decided April 11, 1899. Jcdd, C.J., Frear and AViiitixo, JJ. An alleged equitable owner of land is not -entitled to an injunction to restrain the prosecution of condemnation proceedings against the holder of the legal title, during the pendency of a suit to have the holder of the legal title declared trustee of the land to the uso of the equitable claimant, on the ground that the holder of the legal title will not protect the interests of the equitable claim ant, there being no collusion between the plaintiff in the con demnation proceedings and the holder of the legal title. OPINION OF THE COURT BY FREAR, J. Th ia is an appeal from a decree sustaining a demurrer .and dismissing a bill in equity for an injunction against certain con demnation proceedings. Tho parties are corporations doing business on the Island of Maui, llie plaintiff being a foreign, the defendant, a domestic corporation. The bill alleges in brief that plaintiff claims to be equitably entitled to some 0,000 acres of land to which are appurtenant valuable water rights, which land is a portion of the Ahupuaa . of "Wailuku on the Island of Maui and is held in the name of Clans Spreekels of San Francisco, California; that a suit is now pending in this (the lower) court brought by plaintiff against said Spreekels praying, amongst other things, that he be de creed a trustee of said land to plaintiff's use, and that an in junction therein has been granted and is now in force restrain ing him from disposing of said land, as appears by the record in said suit, profert of which is made; that defendant has brought an action before the circuit judge of the -Island of Maui against plaintiff and said Spreekels praying judgment authorizing its construction of a water ditcli and flume ten feet wide and about a mile long over said land, that summons therein has been issued but that by consent the time for plaintiff's appearance has been extended; that plaintiff is informed by defendant's attorneys, who aro also said Spreekels' attorneys, that said .Spreekels does not intend to dispute the granting of such judgment in favor of defendant, and that thev, defendant's attorneys, will dis continue said action as against plaintiff and take out such judg ment against said Spreekels if plaintiff shall by demurrer or otherwise contest the validity of the law under which said action is brought and that thereupon defendant will dig and use said ditch; that if plaintiff shall not contest the validity of said law in said action, it mav be regarded as having waived anv claim to do so on appeal, and that plaintiff is advised by counsel that it has just grounds for claiming that said law is invalid; that plaintiff, as soon as it shall have successfully asserted its rights in said land, proposes to utilize for its own puiqoses the water power which the- defendant seeks to obtain and use, and that if its use thereof is impaired or interfered with, the damage thereby resulting to its property will be irreparable; that said Spreekels has no concern in disputing the obtaining by defendant of said water power, and, as shown by the records in said Guit as well as by tho records in another suit, profert of which is made, does not desire as holder of the legal estate in said land to pre vent such irreparable damage; that the said law does not provide for proceedings against others than the owners of the legal title and occupiers of the land, so th:-.t plaintiff's equitable rights therein cannot be adjudicated and protected, and the judge before whom said action a v i 1 1 bo tried mav of his own motion or at the instance of defendant's or said Spreekels' counsel dis miss said action as against plaintiff and give judgment therein authorizing defendant to construct said ditch and pay the dam-' ages to said Spreekels. The prayer is for an injunction restraining defendant, its agents and attorneys from proceeding further with said action until final decision" of said suit in equity or further order of tho court. The only ground of demurrer relied on in this court is the general one that the . complaint does not show facts sufficient to constitute a cause of action. Tho only ground, if any, upon which an injunction could properly be issued in this case, is that the plaintiff is a cestui que trust of the land and that its interests will not be protected in the condemnation case, because that case will be discontinued or dismissed as to it, and its trustee, the other defendant therein, will not defend. The other allegations, as to the invalidity of the statute, the ownership of the vater power and the consequences of a de cision for the plaintiff in that case, cannot be regarded as inde pendent grounds for an injunction. They raise questions that can be raised and determined in that ease as well as in this. Thev can be regarded only as tending to show, with other things, that the interests of the plaintiff herein will suffer if not de fended in that case. If the proceedings for condemnation under the statute (Act 18, Laws of 1S95) were in the nature of equitable proceedings and the cestui que trust could be a party thereto, it could de fend itself therein and there would be no occasion for an in junction. But counsel on both sides take the position that those proceedings are at law, that the cestui que trust cannot properly be a party thereto and that under the statute only legal as distinguished from equitable owners can properly be parties defendant. Assuming this to be the correct view, the plaintiff therein could without question properly discontinue as to the cestui que trust. In that event, if, on the one hand, the cestui que trust would not be bound by a judgment against the . trustee, it would be in no danger such as would entitle it to an injunction. But let it be supposed, on the other hand, that, as would probably be the case, the cestui que trust would be bound by a judgment against the trustee, on the ground that it was repre sented by the trustee. See State r. E. d- A. R. R. Co., 36 X. J. L. 1S1; Rohertson r. Van Cleave, 120 Ind. 217; Hidden r. Davisson, 51 Cal. 13S. Then, if there were good reason to believe that the trustee would neglect to protect the interests of tho cestui que trust, the latter s remedy would seem to be, not against the plaintiff in the condemnation proceedings, but against the trustee by compelling him to defend, by having him removed and another trustee appointed, by getting the trust executed, or by other preventive remedy, as the case may permit, or by holding him to account afterwards for the loss in case the preventive remedy were not applied in time. The plaintiff in the condemnation proceedings, if acting innocently, ought not to be compelled to have its rights suspended because of a dispute between the owner of the legal title and an alleged equitable claimant. Of course if it could be shown that the plaintiff in the con demnation proceedings was acting in collusion with the trustee to wrongfully deprive the cestui que trust of its rights, the latter could probably treat tho condemnation proceedings as void and recover the property or rights taken and perhaps would even be entitled to an injunction to prevent the plaintiff therein from proceeding under such circumstances. But in this case such collusion is not relied on. It seems to be conceded that the plaintiff in those proceedings is merely endeavoring to secure rights in accordance with tho terms of the statute, and that the danger to the interests of the cestui que trust lies merely in the indifference and perhaps hostility of the trustee, that is, assuming that there is a trust. The decree appealed' from, dismissing the bill "with costs, is affirmed. .I. . Hurt well and V. R. Castle for plaintiff. Kinncii tO IJalfou for defendant. ft. WHEELER 4 WILSON I SEWING MACHINES. ft? 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