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

Tarti= lit-ant ! lord paramount, with the right
q control and distribute the waters Of the al
luku river az his viii and pleasure. We were
always Of the opinion that since the organization
Of the Land Commission in 1916, ali arbitrary and
de=poric rights which the kings and chiefs for
merly enjoyed. a. levying Of oppressive taxes.
granting and taxing away the right 70 use water
fr irrigation. &c. ceased 70 exist, and the right
- drinking water and running water, and the
right OF way" was secured 70 the people. hold
ers of kgIeaaGr. ~ the act OF November, 1916.
Il = clearly settled a. law ;hat the use OF water
Tor twenty years, If exercised continuously. e.
rabii-hss Q right BY prescription. But the opin-
ion Of Judge Allen goes further, and declares that
allrais. OF canals leading water from a stream,
axe entitled 70 the amount IF water that has
flowed in them from ancient times and we ap-
Ply the principle in this way the Gu1rGis which
carry water from our Nuuanu Valley stream to
the sG79 PATCHES Of natives and gardens Of for
eigners. are entitled 70 . much water g has run
il them FOR twenty years u m0re-the necessity
Of the Government 70 take this water for the
water Pipes 70 the contrary notwithstanding. OF
course the water could be taken By 3 eminent
domain !" for the Use Of the STATE, but then CON-
1919 aHH-Ea - =-@-- "a N-~ 49, "a -
The much vez=d and important question Of the
right t. transfer water from one portion Of land
% another, l. established By This decision. We
understand that it Is no, unfrequent f0r Z sugar
planter 10 purchase a natives kolo ratche=. in
order that be may use the water. usually flowing
70 them. on bis cane fields contiguous. 1t Is but
reasonable that this should Be allowed. provided
the rights Of others are not thereby infringd.
It would be absurd and contrary to the princi-
PIES Of civilized and scientific agriculture, 10 say
that because q man had acquired a right to use
water for kGlo, that therefore his land must for
al ages produce kaio alone. and that if be at
tempts - raise sugar-cane, coffee, corn. or any
other crop. he therefore forfeits his right u use
water ~ all. The law, which ! but - common
sense a. not a. technical. but allows. as Judge
Allen says. q change in the mode Of enjoyment Of
a right. without working an abandonment.
We cannot discuss all the points - ably
elaborated By h- Honor, but ecomme a care
ful perusal Of this decision u all Of our readers.
In explanation. We would say that Kouohiki noi5
means in common yarlance. the owner Of the
Ahupuaa, whereas formerly it was applied to the
head man in charge, under the king or chief.
Ahupuaa i the term applied to certain divisions
u All a. NH' NS-"Ns '-fA-7 !" az
name Of the qutrai. or ditch, which supplies Mr..
Bailey's plantation with water, Is Kamaauwai,
literally Kama's Glrrai. Tradition informs u
that Kama was one of Nlaui's earliest Kings,
long before the Kamehameha dynasty. An old
and well known mele, OF song, runs this way
"HaE.H K=a~e, +.
Maui o kan2 -
and in p~oetical language among the Hawaiians,
Kama i=a name frequently applied to Maui.
There Is no doubt that this aUtrai, or artificial
canal, il - ancient as any civilization on these
Islands. kalaniauwai, which ~irrigates the main
part of the Wailuku Plantation. Is also ancient,
and both Of these canals are remarkable achiev-
nents Of engineering, whose only guide was the
eye. In some sections are found traces Of bitches
where the water never has run, natives finding
by experiment that water would not run up hill.
Judge Allen refuses u grant an injunction
against Mr.. Bailey. Of course an injunction
shutting Mr.. Bailey's water course, and driving
him back to the cultivation of his = twelve acres
Of kaO," would ruin his sugar-cane fields as
edectually a. a blast from some deadly Sirocco.
We can hardly understand. however. how the
learned Judge. though deciding the case in favor
Of the defendant. arrives at the conclusion that
each party must bear his own costs. This may
be equity, though u Us il l. q new version Of it.
hear that the compliments may appeal this
case, in order 10 get the ruling Of the full bench
on the points Of law involved, and thus set at
rest these questions.