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

10 laE-- 4N4- L. - N.-H aH.- N-
,ae ul.airan,s cannot 5e lords paramount over
tae N4iiaAu river. bat ,isv has- certain Valua-
lie rights I'd water - al apFuIt-n-lHcs = tie
lta3 conveyed q them. and nothing m.re.
Trey cannot; clam amy nights except w-4i they
lave acquired Jy their dea.> aul iel>rs. ami t-e
d-taI.u- Is ia tis sauc cate-.ry- Both are
limited iu iL.ir rights It water. anu there = MT
,ae slightest ground 10y declaring either -s lord
Paramount. - much reason IS "a matter ~ lrIn-
CiTle in the one c. a- the other. The difference
consists merely in the far greater Iy>~s>lonS
pf the cpurlliuauts-
~ The next material question i that Of 4 diver
sion T the water ty the defendant 70 The INJURY
u the mill. and premises q the compliments.
The t5tl= Of the land On which the cgmIlliuautS'
uil situated j. derived from an award Of the
Land Commissioners L. " lillian Luuaijlo. and
Iv ham Leased l. them As alleged. there was
FORMERLY = sugar mali at tte sam place, on
which the mill : ulw situated. anl the same
was erected and used by order IT klmrhameu4
III. That iu consequence Of tire extension arl
divers. n OF the water flowing through the ha-
maauw.i from the Nai.uEu river. tie COM
Tlaiuaut- have been deprived Of thei- usual i5w
vf W4ts-. 80 tLGt taeir works have been obliged
10 stop. and have been otherwise injured In their
usual business of sugar culture. and manufacture.
The Court have already declared that Jac COM
rlaIuauts are entitled u tie same flow % water
in tire water course 10 the Nailuku Plantation
Mill IL has run there from time Immem0Tidl but
after a very careful examination OF the evidence.
] an OF opinion tlat whatever deficiency there
may be. in comparison 10 former times. !, Is ac-
counted for by the fact Of . diversion Of water
above, by tine kIlauIIuwai. Of far larger qUauti-
Is than ever flowed there before. some Of the
witnesses testify that there are two or three times
q much - formerly, aud that It waters some
four hundred acres ol cane of c1mUl7inantS. II
may he wei. = remark here thar the Complain
ants commenced Planting in 1868. Ii Will not
be seriously contcnded log the compliments that
they bad a right p lessen, by the kalauiauwai.
~F. -.-----. .-.v an IL vHa-.r M -
and ii they did that they could claim damages
from those Interested in the kamaaHwli. because
they secured their usual flow. This quantity
they had a right u. Il Is very clear from the
evidence THAI lad there been the same flow II
water in the Waikiki. below the Kaianiauwai.
that there WIS prior u IL enlargement, that the
courlain4nts would have had NJ occasion TO
complain Of the want OF the usual hJw OF water
in their mill water course. This j. 8 complete
and satisfactory account of the deficiency Of
water, but, a. il was caused by themselves. they
cannot, with pTopriety. complain of their neigh
bors. who have rights Of water III the kamaauwai.
From the general current Of the evidence, 1t
appears 10 me most manifest that the injury
which the cJmIiaindnts have received. from want
Of the usual tJw Of water to their mill, has
arisen from their own acts. They have diverted
= large quantity of water by the Kalaniauwai,
which was accustomed 10 flow in the Nailuku
river. and which supplied the kamaauWai and
the mill water course. There i nothing in the
titles which give To compiaintnts any ~p.e-eminent
rights. and they are not justified by the evidence.
My opinion is that the kamaauwai, the Ka-
Ianiauwai and the Wsiiuku Mill water courses
are each entitled 10 the quantity of water which
las usually IL wed therein, and that the owners
Of neither can rightly divert water from the other.
Their rights are based upon grants and immemO-
rial usage No riparian proprietor can lessen
these rights.
The owners of the lands waterei by the Ka-
maauwai have no right to Increase the aow. and
the weight Of evidence is that they have not. and
that the quantity which now flows l. in con-
iorLnity To the ancient usage, and that 1t does
not exceed it.
1t i in evidence that the amount Of water
varies very much in the Waikiki river. II Is
subject 10 freshets. The head Of the kamaaUwai
l. usually washed away III the winter, and the
bed Of tie river II lowered, which renders it nee
e--ary T. build up q wall So that the water can
How into It. All the inhabitants interested in
Lands watered by it have, for many years, united
for this purpose.
The comilaInants further allege that the de-
PENDANT has Diverted and extended Il lateral water
c1urs, Of the Waikiki river, and caused tie
water 10 flow on TO kUla lands. which were not
entitled to water. either ~ grant or permission
of the kyuDhIki. or by the usage and custom of
the kingdom. and that in Consequence of this
extension aud diversion of the water flowing
through the Haluaau~ai from the Waiiuku river.
tie rpInpiaiH3uts have been deprived OF their
usual flow, aud that they have been damaged in
consequence. of the diversion.
/. j. cgntenLed by the compliments that ~
the defendant has the right only TO the use of
the water Of the kanaauwli ditch for the water
ing Of twelve aCres Of kdlO land, the extension
OF the ditch on kula land and "a diversion Of the
water from the kalo patches u cane var Illegal.
because IL was or ciuJliy appropriated for this
kdlJ land and always used as such. and the diver
sion has injured their lands in kulua. Il j. fur
Their commended that it would b. difficult, if not i'm
possible. 20 admeasure the quantity Of water, =,
that the same amount would be conveyed On tie
kula land That has run on kalo. The Court regard
this a. an iiiiberal construction Of the prescrip-
tive right and one which would do Infinite
mischief.
In the deeds introduced by the parties. it Is
not set forth for what purpose the water u which
the lands we're entitled by prescription should toe
used. IL i very we'll known. however. that
originally the water was wanted mainly for the
cultivation OF kalo and more recently TOR cane.
II land has q water right. ii Will not De conteudcI
that the water shall be- used forever for the same
crop. be II kaio " cane. IL may be used TOR
any purpose which the owner may deem ir his
interest. always taking care that any change
does not affect injuriJusly the rights OF others
Ii the person whose lands and mill, are watered
by tie kamaauwai, have not taken any more
water than what they have always enjoyed, the
cOmpl.iuauts have no cause Of COMPLAINT. A.
Chief Justice Shaw says in the case OF Elliot and
Fitchburg R.R 10 Cush., lyj, "lfthe use l. law
fUlaud beneficial, il must be deemed reas enable and
not an infringement Of the rights of the plaintiffs.
iii did no actual or percepti5!e damage 70 them
Various parties. interested in the kamaauwai,
have hitherto mutually agreed upon the diver
sion of water, and for q period the cJmIlainauts
participated with them. When there are yari-
Gus interests in the same fOw Of water, il i de-
sirahl, FOR the parties to agree upon a suitable
mode aud arrangement to regulate and adjust the
same, but If they are unable 10 agree. AZ ad-
measurement may be made by order OF Court.
This i lv no means 4 new problem. There l.
no evidence that the lands Of defendant, adjacent
to his kalo lands. have any prescriptive right to
water. ana although IL is in evidence that k4lua-
publ was purchased as cane land, sill there i