The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1867-02-09

In ;A:S country l,be United States. Sys
tr-l in hs valuable Treatise on Water
C..r~s. the doctrine = well settled, taal
where right has l,-n acquired uE virtue OF
twenty yc.-s enjoyment. 10 Use = certain quantity
IF water. d change a. tie mode ana 'a.rt,> ti "St
j. iustiiatl- and here - IN LnEatl, IAe 'hif
restriction l.. ,aat tie all; rsslonS made iI-iA 'sle
L. tlly shall NOT De- m5urisM 10 those Who's m
5-re,t>a., Involved. >UIcklyr - IuUl, iNN y
R4w.-'> Penn l.. G3. blanchard rs laser :
Gu,eu---I> T.. Is
e. NatT, 4. right exists - U.s. q certain quantity
II water lor rrei~.liDE machinery. a change may
he made nut .uIy lu the mode and OBJECTS oi tAe
Use, bus al the place Of using It. II the quantity
OF water Use- l. nuJ Increased. ana tue change :
not - the prejudice OF Others Thus 4 party hAd
fr more shan twenty years used a certain guam
tity Of water ut 4 particular dam II was held
De might ov-n hi> gates AND draw that quantity
without u>iu. II there, in order a use II At other
works below Oh the same stream And the owner
%. q mill may even draw q larger quantity ut
water through lis gates than he had been AcvaS-
toned 10 US. ii he has lawfully provided the sur
plus, Tor lis own use. by means pt Il fN.r'F
above. and causes M injury thereby TO Jlc owner
Of another mill situated upon the same dam. r 70
other persons having rights in the stream. mt
riar IS. C.ch,cD Manufacturing Company, % New
Hampshire r., +j+, Brace5ird.e IS. ic-eoeN, 10
Jgr.. Q.
In tie English Court of Exchequer an action
was instituted Tor the diversion Of wa'er-JGe
plaintiff alleging in his declaration "a rcveTsi51ary
interest in three closes of land, to VIII: three
ponds filed with water, one pond being on each
Of sid closes. and = right % the flow OF water
into said closes for supplying the said ponds with
water. The defendant traVer>ad the right. II
appeared in evidence. that the llNlnut had IN
loved an immemorial right u the How OF tins
water into the ancient pond IN one OF ms closes,
bat ihat when thirty years ago he made i new
uoud in each Of the three closes, aud turned the
80. 80 - -. ,rrf- -llrn ha ff4-aarlWrh dis
used the old uOnl. Park. Il. said - The use Of
the old pond was discontinued only because the
plaintiff obtained the same or greater advantage
from rEe u~c OF the three new ones. tie did not
thereby abandon his right. he only exercised II IN
a different spot The right alleged i = right -
water into a pond, and JiIat right Is equally
proved. whether IL be by prescription or grant.
The declaration means no more than this. The
plaintiff has the right 10 the overflow OF water
either in one pond or three ponds. Hall IS
OIdroyd. Il Mesuu < Wcisby's T.. TSy.
In the c.se of Saunders Is. Newman, l b.
Il Aid. R., 25S, the claim in the declara-
ton was for a mill generally. 1t was held
that the right t. the discharge Of the water
was not lost 10y an alteration in the dl1nen-
sious Of the water-wherl. " The owner said
Mr.. Justice Abbott. in that case is not barred to
use the water in the same precise manner. or ap-
ply il to the same mill IT he Were, that would
stop all improvement in machinery The same
principle applies with equal force u Improvements
in agriculture. ''All that thelaw requires. says
Chancellor Kent. lis that the mode Or manner Of
using the water should not be materially varied.
t. the prejudice of other owners and the propri-
etor il not barred TO use the water in the precise
manner. or 10 apply IL 70 the same mill, Tor such
Il construction Of tie rule would stop ali improve
ment in machinery. lie is only NOS 10 vary the
enjoyment u the prejudice OF ms nCI5hOuE. .
kent's Com. 90
K Is further couteudcJ by the compliments that
their lands. situated in kdlga, oTpN-it-aEd across the
road from rra twelve acre. % Eaio land Of defendant.
merry the surplus passed from tte E-lo patches into
q ditch bordering on the road, and thence flowed
acruS~ on their lands, and Lad done 80 from time
immymorial. II appears ia evidence that the halGa
lands were supplied with water from q branch of
the KalHaaUwai, ana tLat the original design of lis
extension Was mercy 10. lLe P"Fl1se vl watering
tile twelve acres of kalo land. The question Is
whether II was such a use IS would give "a pre-
-cInfiNe fl-AI- e = GLIIht thc cas- 81 "HJ"G.Ht
proprvtors oi kalo lands, when watcT l. supplied
from one kalo patch To another Ia TINS case there
cases that have been cited IN reference 10 the water
How from mines, where a use Tor twenty years af
forls no presumption OF a grant 81 the rights OF
water IN perpJtuIIy. II i merely 4 right 10 use the
water as long as il continues 10 How.
And the defendant contends that he l. under no
real obIirstfnu To kccl, this land forever in k.Iu. to
supply a drainage 10 the hands of compiaiuauts. IL
i, a-1Ifi-,Iy uulikc the ne OF a yiuiuci laid ont bv
the k%Ouuhiki, TO accommodate several lands, or Il
series of halo patches, Wien the lJ" Is from one To-
another. In Tie case "t Nh.atly ~ Baugh. -
aA'lk-I Nl4il EN7t..t - 81 -aA-, tAat 10 Lt.ti Il
stream L" the consideration 81 the la'', ii i Ger
tainiy necessary that 10 be = WatcrcoUr-e, in the
stems, ot that term Nd>lthun says, ia his
very valuable work on Easements and SefyitUdcs,
81. that - juc law has never cone 80 far a. 10 re
cu-uiz- in one man q right to convert another mans
farm GO his own use for thc purpose ul q uit-r.'
a IMAM may dram his swami, although 10y 80 doing
ht may prevent the water wAte. was accustomed to
collect there from penetrating tUe earth. and thereby
Iuuiu- il way into a stream which iuws To am cV-
listing mill, and thus diminish the quantity which
was usually supplied thereby
So II the water OF "a mill Is accustomed 10 overflow
in.e any definite channel, the owner may stop -u.b
overflow, although lie thereby prevents il drain
Jag into a ditch through which il finds its Way into
- small stream. and iu HAT Way n.u~iou~l} aiicct- the
operation Of a mill thereon. , Wa-hbuTn on Real
Property. When q tract OF land attached 10 au aead-
t3uy Is VUrTp-eiy left UIeUc.n-ed. and au owner us
adjacent land passing over such jnart Tor more than
twenty years, such passing J. regarded - per
Iui>-ivc, and not adverse; 80 that lac acquires no
right of WAY. unless Ire does some act indicating a
use under claim OF right. Al adverse right 10 an
easement cannot grow ont of "a mere ptrIui-siyc en-
jUyuru- for aUy lyu-th Of time.
Take, Tor example, the case of "a miner who USES
pumped ur iow- ON III, !aIa OF ala adjacent FroIri-
dtur. ana i th-u used for agricultural purposes. il
" &C. a. ~. p, o", ,c.I n. IN ~ ~ t"s
steam engine IN operation 10 supply the and with
water ia lcIpytulty. SUPPOSE. Tor example, that
water runs from the spout 81 thc caves cf a row OF
used for domestic purposes, ! would Hot Dee CON
tended that the cWH,T Of the houses utu incurred
an obligation that his structures Should always be
SUCH - 10 lToNiut Tor iLls purpose An adverse
right cannot ar.-. from ii lrTiuis-iyG enjoyment.
There l. no pr-teuse that this water was claimed as
Il matter OF night ii Was merely the reception Of
water from the drainage, and II certainly can create
no right to ohli-c the defendant and his grantees
forever 10 Use the land Tor the exclusive purpose OF
Tie counsel on both sides have made frequent
reference I. the rights sd riparian Tr"TrIetJrs AT
have very little practical application 10 tAis case.
4 riparian proprietor has % qualified property IN the