The petition for rehearing sets forth as its ground that there was no evidence to sustain the court's finding that there was a dedication and an acceptance of a highway and that it was "neither alleged nor ever claimed, during the trial, ownership of any part or interest in the Defendants' land."
The defendants misconstrue the decision, as the holding is not that there was a statutory dedication and acceptance of this land so as to give title to the Territory and obligation by the supervisors to maintain a public street. As pointed out in the decision, no acceptance is necessary; maps and plans duly recorded and the sale of lots by the former owners based upon these plans constitute a dedication, citing Broocks v.Muirhead, 25 S.E.2d 889. *Page 656
The approval by the city planning commission was referred to because our statute specifically requires such approval of subdivisions before they be permitted to be registered in the land court. (R.L.H. 1945, § 6638, as amended by Act 222, Sess. Laws 1949.)
In the present case the proposed highway had the approval of the city planning commission as part of the master plan for Honolulu.
As for the evidence being inconsistent with the pleadings, the evidence shows by the maps of the land-court registration (Torrens title system) that such easement existed and lots were sold based thereon, and in accordance with section 10079 of the Revised Laws of Hawaii 1945 the plaintiff has been permitted to amend his complaint to conform to the proof, that is, setting forth the easement.
The numerous authorities dealing with dedication under statutes cited by counsel have no application to the present case. A statutory dedication would give fee-simple title to the Territory and there would be no interest whatever in the defendants.
Petition for rehearing denied.