DISSENTING OPINION OF
PERRY, J.Even in the light of the common law discussion contained in the above opinion I am unable to construe the instruction as it is there construed.
Unless words and phrases capable of both a technical and an ordinary signification are specially defined by a judge who is instructing a jury as to the law of the case, the language used by the judge will be given by the jury its ordinary every day meaning, the only meaning which it is familiar with. All of the jurors who sat in this case were, it may be safely said, wholly ignorant of the history of writs of right and writs of entry and of any technical meaning at the common law of the word “entry” and of the words “title to land” and “right to land.” Listening to the statement of the law contained in the instruction, in all probability for the first time in their lives, they would, I believe, naturally understand it then, as I understand it now, to be a direction that the defendant’s going upon the land was wrongful if it took place within ten years from the time when the defendant or its predecessors acquired title to the land. In the instruction itself the judge showed in the use of the words “as shown by the evidence” that the entry he was talking about was the act of going upon the land which the evidence adduced tended to show had been done by the defendant. This also appears from plaintiffs’ requested instructions 4, 7, 11, 13, 14 and defendant’s No. 9, and perhaps in others, where the words “entry,” “enter,” “go upon,” “acts of trespass” and “obtain possession” are all used as importing a going upon the land and as referring to acts of the class which the evidence tended to show had been committed by the defendant *687upon the land in controversy. Likewise the construction that the words “from the date the title or right to such land was first vested” in the defendant or its predecessors meant from the date when the right to judicially recover land not in the possession of the defendant or its predecessors first accrued, or from the date when defendant was ousted, could not reasonably have occurred to men ignorant of the common law. I venture the surmise that even if the jury had been composed wholly of lawyers chosen by lot from all the attorneys of this Territory or of this city, the jurors would have taken the language of the instruction in its ordinary acceptation, and, while holding a different view as to the law, would have regarded it as a direction to find for the plaintiff if they found the facts of possession at the time by the plaintiff, a going upon the land by the defendant in spite of such possession and a lapse from the date of the deed to the defendant or its predecessors to the time of such entry of a period of more than ten years.
On the petition for rehearing plaintiffs’ attorney argued in this court, in support of the instruction, that it is the law that a person who has acquired title by deed may not lawfully enter upon the land if it is at the time in the possession of another who has had possession for however short a period, less than ten years, and who has no other claim of title, unless he, the grantee, does so within ten years from the date of his deed, adding that thereafter the title would remain in the grantee but that the latter wouldi have no remedy to obtain possession or to otherwise render his title effective. It is fair to infer that 'argument of. the same nature was presented in the trial court in support of the requested instruction and that the latter was granted as meaning what in my first dissenting opinion and in this opinion it is construed to mean and that fact alone would amply excuse a failure on defendant’s part to ask, even if otherwise it woxild have been its duty to do so, for other instructions defining the terms-used. If the trial judge had not concurred *688in counsel’s view of the law on the point he would have expressed the instruction in other language. Defendant’s 'attorney, the record shows, excepted to the giving of the instruction. The inference is that he opposed its granting.
If instructions .are so ambiguous, confusing or misleading that even the appellate court finds it difficult to understand them, it cannot be said with any certainty that the jury understood them, that the trial judge performed his duty or that both parties have had a fair trial.
While concurring in the view that the evidence was sufficient to support a finding of adverse possession by the plaintiffs and their predecessors in interest of the land in dispute, I am of the opinion that the evidence was not such as to necessarily require that finding and that there was sufficient evidence to support a finding against the plaintiffs on that issue. Aside from the fact that there was evidence tending to show intimidation on behalf of the plaintiffs of one at least of the defendant’s witnesses and other evidence tending to weaken the credibility of some of plaintiffs’ witnesses who testified on the subject of adverse possession, there ivas evidence, inter alia, that the land in dispute and the portion upon which plaintiffs’ house now stands were not fenced in as one lot and that the only fences standing for any considerable period of time were the Cornwell fence on the makai side and a stone wall along the road; that the parcel in dispute has not been cultivated or used in any other manner since Kaauwai’s death, which occurred according to the evidence in 1882, 1883 or 1884, but has been covered with lantana and other noxious weeds since that time; that horses and cattle belonging to others pastured on the lot without restraint until the time of plaintiff Hannah’s marriage about four years prior •to the trial when her husband repaired the fences; that before defendant’s entry the occupants of the adjoining Kaina kuleana planted taro and peanuts on the land in question; and that the holding by the plaintiffs and their predecessors was not continuous for the full period of ten years at any time prior to defendant’s entry.