The issue pertaining to the title of the structures and improvements such as the water tunnel and railroads on the lands subject to partition was authoritatively settled on first appeal of this cause, this court holding that "* * * the structures and improvements placed upon the land are not the sole property of the petitioner but, on the contrary, *Page 97 are the property of the parties hereto as tenants in common to the extent of their respective interests * * *." (Pioneer MillCo. v. Ward, 34 Haw. 686, 707.) This prior appellate determination, not having been disturbed by higher tribunal, became the law of the case (see Dress Mfg. Co. v. Cadinha,36 Haw. 732) on the express remand of the cause for further hearing upon the issue of whether the lands are susceptible to partition in kind, the respective interests of the parties therein not being in dispute. (See Pioneer Mill Co. v. Ward, supra.) Consequently, no manifest error therein appearing in the record, that determination need not be reexamined on subsequent appeal.
The efficacy therefore of this, the second appeal, to cause appellate reversal of the decree entered by the trial judge after remand at the further hearing primarily depends upon whether his determination of the remaining issue which was the subject of that hearing constitutes reversible error. On that issue he ruled that the lands are susceptible to partition in kind and decreed accordingly. This the appellants specify and assign as error. Such presents the paramount question, an affirmative answer thereto being decisive of the appeal.
In this territory partition is a matter of equitable cognizance (see Brown v. Holmes, 19 Haw. 268; R.L.H. 1945, § 12450. Also see Haw. C. S. Co. v. Waikapu S. Co., 9 Haw. 417), the courts by statute being empowered inter alia either to divide the lands (or portions thereof) among the parties according to their respective proportionate interests therein where equitable or to sell the lands as a whole "* * * where for any reason the partition thereof in kind would be impracticable in whole or in part or be greatly prejudicial to the parties interested * * *." (See R.L.H. 1945, § 12456.) By virtue of this statutory authorization it follows as a matter of law that, where it appears inequitable so to divide (meaning that partition *Page 98 in kind would be impracticable in whole or in part or be greatly prejudicial to the parties interested), the lands are not susceptible thereto and a ruling to the contrary by the trial judge would be an abuse of judicial discretion.
The difficulty of judicially determining whether the lands are partible in this case is that there is involved a question of water rights which materially affects the ultimate value of the lands subject to partition as a whole and that of the interest of each coparcener therein. This question is raised by the pleadings where it is claimed that certain of the lands subject to partition which border a stream have been deprived of anciently entitled water rights. The undisputed evidence upon this question is that those lands are not the only ones bordering the stream but that lands not subject to partition also abut it and that the water tunnel since its construction has diverted and continues to divert water from that stream to other lands not subject to partition. It is apparent therefrom that the question cannot be finally adjudged in this litigation because it concerns lands beyond the jurisdictional limits of the case, nor can there be binding settlement of water rights, parties necessary thereto not having been joined and juridical adjustment or allowance of owelty to the lands subject to partition for loss in value that may be caused by any deprivation of rights in the diversion of water to other lands being jurisdictionally impossible. It therefore cannot be said as a matter of law in this suit that the lands sought to be partitioned are partible nor that partition in kind thereof would not be impracticable, either in whole or in part, or greatly prejudicial to the parties in respect to their proportionate interests, the jurisdictional inability to settle the question of water rights rendering the lands incapable of equitable division and the trial judge's decretal determination erroneous and prejudicial.
Although nothing more need be said, it is material to *Page 99 the issue of partibility that the lands themselves are not otherwise susceptible to partition in kind by reason of their impartible nature. The record reveals that the lands are rural and remote from any urban district. It further shows that they are comprised of six noncontiguous parcels scattered from the mountains to the sea, having an aggregate area of less than 200 acres, and that within and between the various parcels there exists no uniformity but great diversity of locations, characters and present values.
The sheer impracticability (aside from that attendant upon the question of water rights) of dividing such parcels is evident, even were the component parts of the division comparatively few in number and of comparable sizes. (Compare Brown v. Holmes,supra. See Lee Chu v. Noar, 14 Haw. 648.) Such impracticability, moreover, is accentuated in this case by the multifarious interests of the parties hereto, especially in respect to those interests which are so infinitesimal that allotments in regard to them would be practically worthless and unusable in great prejudice to the parties receiving them. In this connection the record discloses that the parties hereto are sixteen in number, eight of which have 0.007875 per-cent interest each, three 0.0296-2/3 per-cent each, one 0.195 per-cent, one 2.345 per-cent, one of the appellants 5.470 per-cent, the other 6.250 per-cent and the appellee 85.588 per-cent.
By the same token it is likewise evident that partition in kind would greatly prejudice all the coparceners. This is borne out not only by the impossibility to properly compensate for any loss in value to the whole that may be caused by deprivation of rights in the diversion of water to other lands but also in general by the only evidence in the record of comparative values in regard to the lands subject to partition, which tends to show that their total value after partition in kind would be substantially less than the probable monetary realization upon a sale of the *Page 100 whole. Such disparity of values is a well-settled criterion of prejudice. (See 40 Am. Jur., § 83, p. 72 and n. 4 for authorities.) In support of this probative tendency a strong likelihood is indicated by the record that the difference between the two methods of partition would be even more substantial and the amount realized by partition sale greater than otherwise would be obtained. This would be occasioned by entry into the bidding not only of the appellants who have the financial ability to purchase but also of the appellee and other owners of those lands which may be benefiting from the diversion of water and the resultant stimulation thereto which such participation would have, it being to the special advantage of the appellee and such owners to purchase the lands placed on sale so as to consolidate their holdings and thereby eliminate any question of right to the water diverted thereafter. At this point it should be noted that the probable effect by partition in kind upon the respective interests of the parties in the lands to be partitioned is material to the question of prejudice but not the effect it may have upon other interests in those not the subject of partition unless it clearly would tend to promote the common interest of all the coparceners. From the evidence in this case, however, such equality would not arise, the appellee being the only party hereto having an interest in adjoining lands and any effect advancing that interest having the tendency to promote the appellee's interest in its allotment exclusively.
In short, it conclusively appears from the evidence that a sale would be the only feasible means by which all the parties could be equitably treated as tenants in common according to their respective proportionate interests. Under this state of the record, the appellants have an absolute right as a matter of law to a partition by sale which the trial judge should have upheld. He therefore abused his judicial discretion by determining in denial of that right *Page 101 that the lands are susceptible to partition in kind. This clearly constitutes reversible error.
It is not necessary to consider the particular plan of partition adopted by the decree as a consequence of that error nor the procedure employed in arriving at it. Suffice it to say that the decree of partition neither settled the question of water rights nor equitably divided the lands and that the partition in kind ordered by it affords in itself ample illustration of the impracticability of such method as well as that of the great prejudice to the parties engendered thereby, thus exemplifying the prejudicial nature of the error committed by the trial judge in his determination of the main issue that was before him.
For the reasons stated herein, I concur with the result of the majority opinion that the decree should be reversed and final decree entered by this court ordering a sale of the lands as a whole with division of the proceeds among the parties in proportion to their respective interests as cotenants, together with an apportionment of the value of the houses removed by the appellant as pointed out by that opinion. *Page 102