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


Tes 5ula la,d OF the defendant has no riparian para
-,- .rI II does not appear 10y the ''ld'i'c
r. s-, lrgScrIpriyc rights ui hFt-"t-,L .H
Es,-s-uu.sf- The counsel has made inc Ate-
80 lsrf has natural right 10 lrT1-dtoi. aAu
$50 rT lands have IL iu aria c"ullt'-S :
t-l ,.,- M law which regulates the Vs. OF
uat.- would lie somewhat dliicEeW III
f-,,, tgst in northern latitude. ID --ite
r.,rtf-rs Of -nc United States advantages 'Lt -.rSI45
4-. ana nya-fsw the hand II another ltT7lN
- convert the land To his own use Jho
d.. :. Trrv responsible in daUa- II Il'. ~,
I'm this Kingdom. these I--7 n mo
u.- probably Pee iutriu-.d upon - . "rf.5
principle Cannot Is carried 10 '"' ,,",i4 hr
for Ply the counsel. for iAe T,.~i" ~ v,oU
as el>~fr- IL over the lands = others "AIS" WIN
In fl5T adjustment between these parties, they
NAV r.-arI certain principles a~ -eiti'I, o.t
-bev hold aam rle same SrantorS, and WIN -liAi.a.
.,l.1-TguaI rights. each J. entitled TO al. the rights
Mil If- deeds give him, no more aud no le<s, at
- -rr7r RIGHTS conflict. kaiauiaUWai,
Eg-.-4-,Nai and the min W@ter-CouT-- ar thi!i-e"
t. an the vatcr which have flowed III them from
ID. Ana II II any time there Is a drought, and the
water j. diminished ju TIC Na'tuhu river No. t
rfsuvaf have no right TO divert he water OF the river
50 that The hau-auW"l oud the mn. w.
-ra- had -l.ra have been the same flow OF water m
III. river. a. There was prior - the cUttlNa''Cu 'i
land on the north side y the compialuanJs' ana IIe
enlargement of the hal~nEaNal' t-tIe "oGIN - -
NO occasion TO lessen the water m the ihlu ""lSI
n-rr--. u J. In evidence satisfactory it NY ~
mrld. that those Interested Ia lhr hau.IiuN" ~
diverted d diSuropoTtioUatc quantity % wafer = II
flowed in the Wliluhu river, from the mil wafer
course. But the evidence i conclusive tHa. -
COMMITMENTS have diverted "a very large quantity OF
water into the KaiauiaUWaI, from the river, beyond
lis u~eScrirtiyr rights, which, prior 10 me thIiNA-
y[-f,n of +Ilrfr plantation. supplied the kamaauWai
and the mill water course OF compartments ana
- ,f.-z- nv. caused The deficiency in the river.
they have no reason To complain OF the diversion a.
II i not greater than the kamaauwai i entitled 10
a. lre>yripriVc right. The weight OF evidence Il
LLH.H -rH~F ~ 4 N4rIF flowed Tor
merlv in the kaIauiauwaj and kamaauWai, and that
no more i'm the latter than formerly, but 4 great
the Kalaniauwai.
The original purpose of these water courses was
To supply kalo patches, and the intention OF the ko-
uuuiAi must have been 10 give All Inc ha!o idhds on
this ahupuaa rights OF water AZ all times when
needed. halauiauwai has no priority OF supply over
k4maaUWaI and the ulL water course ostauev II
was situated above them on the stream, and neither
has EamaaUwui superior rights 10 the mill water
course for the same reason: bul all are emitted 10
their usual flow. The weight Of evidence l. that no
more water flowed in the kamaauwai ut the time
complained OF than formerly. Witnesses have ties
titled 10 this fact having existed for more than TWEEN
" wears; therefore compliments have not Us.ined
The ALLEGATIONS of an Illegal diversion. The Defend
ami has not sustained his answer on this, that his
lands. called kaIuapUhi and hekipi, were entitled to
water, either by grant or prescription; but l am OF
opinion that he had a right 10 transfer the water
from his kalo lands adjacent 10 these lands II by 90
ing 80 he did no injury To other persons. The
coIupIaiuautS have not sustained the allegation that
il has done so 10 them. IT Is only changing the
place OF using the water, and they had no right to
complain il il worked no injury 10 them. The de-
PENDANT i not Obliged 10 keep the water on his kalo
that il might filter through these patches and flow
over the road on 10 the land OF cOmplainauts below.
The change i'm the place Of the intercourse on
his own land i justified on the same principles.
These changes OF the bitches, or of the water. de
pend upon the question whether injury Is inflicted
on others. The complaiuauts have not sustained
the allegation of injury.
These are nv views of the rights OF the par
tics. To adlnra-Ure the quantity of water 10
which the kaTuAaUwai Is entitled i not q diff
cult matter. and for many years ut least, il i
ytTV evident that those Interested have very
amicahly adjusted The same. These parties, who
are very intelligent men, can easily do il, and | trust
they viii in q friendly manner. The principles
which the Court have now declared, are, in many
respects, as important to the cOmplainants a. 10 the
defendants. \ portion of their lands was formerly
cultivated with kalu, which i now planted with
cane, and very likely some OF the water which was
formerly devoted TO kalo, if not already transferred
10y the extension of the bitches, SO that il irrigates
cane, they may wish hereafter 10 do so. : slight
change IN the course OF the ditch for mill purposes,
or any other beneficial purpose. which causes no
injury TO another. l. as likely 70 commodc one "a,
the other The opinion of the Court must rest
upon general principles Of law and equity. and any
as il appears TO me, would Ice ~ much against the
common Judgment OF the practical planter, rs
against these principles.
Iniuuctious are moi awarded iy Courts Of EQUITY
for The Infringement Of even doubtful rights until
they have been established At law. and therefore, |
cannot certainly III thIS case issue an Injunction a.
prayed for. Srill a. there was evidently on The
minds OF both parties mistaken ideas Of their rights.
which were very honestly entertained. and which
this investigation viii aid, l trust, in correcting, l
shall dismiss the application, and each party must
pay the costs incurred by the same.
Mc-srs. c. c. Harris. Il. IL. Stanley. J. c. Farwcl
and :. ". Ii. kaUwahi, Esqs., counsel for petition
cT-.
Messr-. A. T. Judd and W c. Jones, Esqs., coun
sci for respondent.
February 18th, 1867.