The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1867-02-09
THE PACIFIC
Commercial Advertiser.
TIE WATER RIGHT DEClSI0N.
SUPREME COURT.-In Eau Iry.
siberian Peek r. al. -. Edward Baiiey.

us.-..s as Hos ,l.9 Jssr.sE ArLz>. CHAsoErloE
Th- eJmrl4iu4a,- in this bl ailese tllt th-y
are tie gW---- 10 = sugar plantation and mIi.,
situated OLA tLe Waikiki river. On t5e Island 30.
Maui. and t'4r The s-Ii river continues IT, whole
course through tL-ir plantation. ana has - 1uw-
Il from time from which are
tao lateral water clur~=. which supply water
:r tire u-= %: tEe said mill and plantation. and
=aleh ta-v ar- entitled fully O. enjoy
TIE cYmr.aluluts further l.l-Z> tLa- their U-ls
= derived almost entirely :r1u the k5u.iik. OF
tl. AhuTG44 % Naiiuku, whom they alle-e had
tie night ~ lIEl paramount over tAc h4l.uhu
river - an lFTlr-euauce . nI= A.upuIa. and
tLe~ a-lez- that TIE defendant Ia 10 night Oi
W4t-r 10 tine -ll1 stresIn- except tl-t which 49,
allotted ty the EJnyHiSi for tie use u certain
tlrs Tatct-s g defendant. which they aver Vs.
much los than the defendant Aa- diverted u hIs
U.s.. and q tL- injury ~, compliments
Tie cynFl4Iuauts ALICE that the defend
ant has. by a dams and other means. Illegally AMI
w-1usiuliy diverted tLe water II Nal.uku river
from ti-ir mill and Ir-mi-cs. which ha- caused
great interruption y the Use Of their mill and
IrTuT- % their csLue.
The cemplainanrs further allese that the de-
PENDANT ha. extended the w4t-r course. which
supplied bis kllJ land, - that IL waJsrel kui4
land # defendant which never was. and J. Mt now
entitled u water, and thereby hls diverted q
large quantity Of water from IL usual course.
and which, from time i~mmemOrlal, has had IL
flow - the mill, and premises of cJmpllin4uts.
The clIupiIiuants pray THAI the defendant NAV
b. restrained by the injunction Of 5his Court from
making this Illegal diversion OF the water Of
Naiusu river, a. IL L4- prevented the wat-r
h,wIug % tire mil! and premises OF cUmVluinau,s
IT, sgch regular quantities a. they were entitled
u. and u their great injury.
Defendant admits title % tie land in Cccu-
paHcy of cJmI.aiHanI-. but denies their rights Is
lord paramount Of Waikiki river, and claims
tbLt Le Eg- not used mole water than he u en-
titled - by pre>criVtive right, i~mm-mJrial usage.
and the Jaw Of the Kingdom that he has not
damned tue " alUku river any further than waS
necessary u make the usual diversion Of water
into the Kdmaauwai. He admits that lac las
dried up some tarD patches and transferred the
water u another portion Of hi- cane land, which
lie contends he tad = legal right to do. lie fur
Their alleges that tie cynplaiuants have diverted
the water from their own mill and premises by
charging the ancient water course called kaiuni-
auwai. which had its head above the water courses
which conducted water t. the mill and Premises
Of cDmplainants, - well a. the kaHlaauwai.
which water passed 70 the mill and lands Of de-
fendlnt.
The defendant alleges that complainants d.
yerted this water-a large portion OF which had
always run in the Waikiki Iiver-and used it
for the irrigation Of large quantities Oi can. land
on the north side Oi the river, which l. tie opp0-
=ite side from the mill and premises of complain
ants. The i-sue Is substantially this, viz
- At GIA t44A al the Gl-lE- OF AIIfl
paramount oyer the W-ilukG river.
2i-Tncy alIege that the defendant has wrong
fully diverted from their mill and premises more
water than De was legally entitled IL by the IA
maauy'ai, u the great injury Of their mill and
cane.
3d-They ailege that by the extension Of the
kaWaauWal beyond It's original and true terminus.
the defendant bas conveyed all undue quantity OF
water-far more than be was entitled On the twelve
acres Of kalO L-ud. called kaVouukuOkauhi-On 70
bis kula land beyond. and also that tie has illegally
diverted this water from tie kaio patches, as the
surplus had always passed over the road, adjacent
10 which they were situated, and watcred com
TiainaEt-' land below.
The title Of the land held by both parties, the
rights and privileges Of which are called in ques-
ton, i derived from the King. and from the
award Of tie Land Commission, On which ROYAL
Patents have issued, OF which are entitled to the
same on complying with the usual conditions.
by the Act passed On the 1Ih day pi June, 1873.
hy the King, in cooperation with tie ND5ic-
and Representatives,, a division OF the lands Of
the kingdom vas made. IN which certain land,
were declared . Dc the private lands Of His
Majesty kamehameLa III. t. have and t. hold
himself. his heirs. and -.cces-Jrs forever. and
said lands % be regulated and disposed 81 ac-
cJrling o MS royal viii and pleasure, and subject
only l. the rights of tenants. The ALupuau of
Waikiki was one Of these lands. IL j. admitted
that the water courses known as kamaluwai,
kulauiauwai. and the mill water course 30 called.
have been used from time ImmcmYrlal and they
were the entire property Of the King subject 10
the rights Of tenants. This property became by
Inheritance the property OF kamChameua ".
from whom the IGrties-deriyc tide 10 the greater
part Uf the lands which have been referred I, ia
tine investigation Of this case. These lands were
conveyed with all the privileges and aVPuTtun-
ances, annexed to them 10y law, in the usual
form Of 4 warranty deed, and without any pccu-
liar grants To either.
Thara can 10 ~, .fIfT.-.D.o e ..r.r., .1.+ 81.
cOmplainants were entitled t. all the water rights
which the lands had by prescription al the date
Of their title. By the deed, the water courses
were conveyed and a right to the water accus-
toned to hJw in them. The same principle
applies u all the lands conveyed by the King. or
awarded by the Land Commission. II any of
the lands were entitled u water by immemOTiai
Us e. this right was included in the CONVEYANCE
a. an appurt=nance. An easement aUpurt,nant
u land viii Iass by a grant Of the land. without
mention being made of tho easement or the
appuTtenauces. But il lands had not such
rights, and no additional grant Of water rights
was made. 1t certainly could take nothing by
hayi Z been q portion of the Ahuplaa. 1t
appears ~ the de.d Of the land Of cJmplainants
on the north side Of the river, that the land
although comprising several hundred acres Is
bounded by the river only By u small portion Of
it. How far this would affect its riparian rights.
l. not material in this case. for the reason that
the right which il enjoys by the kalauiauwai i
far more than It's riparian right-all riparian
Proprietgrs have taken this conveyance, subject 10
the rights Of others enjoyed ~ prescription. So
if a riparian proprietor should interfere with an
ancient auwai, by which other lands had been
watered from time immemoriaI. he would be La
be in damages. because this was clearly an ease
meut for the benefit Of those lands through which
the ancient water course extended. \ sound
distinction i recognized between the right to
enjoy water in IL natural state, and that which
- created BY Artificial means rIulrIlu mo
u9Y Of water. a. an incident to his estate. and
he can use the water for irrigation, watering his
cattle. and other domestic purpg>as, provided he
doe not materially diminish the supply Of water
or render useless it, application by Others.