The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1868-03-14
The waiiuLu Water Case.

Our readers will remember the decision in the
case of Peek ct al -. Bailey, rendered in Janu-
airy, 1857, by Grief Justice Allen, and which was
published in full in the AdraGser. IL being the
first case in the Islands in which the subject of
water rights is discussed, il has excited consider
able attention, even in the United States. Gases
decided by our Supreme Court have frequently
been cited in notes u the text Of some of the c!c-
mentary law writer's in the Unitel States. but the
case of Peek Ct al VS.. Bailey Is the first one, a
synopsis of which has been embodied in one of
the standard works of the Common Law.
We find the case in the second edition of
.. Washburn on Easements and Seryitudes" re-
published in lS67. The author, Emory Wash
burn, Ii. D., is a professor in the Law School of
Hazard University, and his work is now the best
modern authority on the subject of the rights
which one proprietor of land has TO some profit,
benefit or lawful use out of. or over, the estate of
another proprietor.
We quote from the text of the Book from pages
sos TO SO, as follows:
\ very recent case has been decided by the Su-
preme Court Of the Hawaiian Islands, in Equity BY the
Hon Oh. J. Allen, chancellor, which is interesting,
not only from the Importance OF the questions il in
yolvei, and the great ability eyincei by the chancel-
Tor in their discussion. but the facility with which
the common law in which the chancellor, born and
educated in Massachusetts,, was trained, may be
adopted and applied To q country whose physical con-
ditiOn differs essentially fom that in which the COM
mon Law originated. In these Islands, the agricultu-
raj productions on which the people chiefly subsist,
can only be raised by the artificial application Of
water BY way Of irrigation. This, as IL seems, is not
done by mere sluiccs cut in the natural banks Of a
stream. by which the water fushes over on To the
adjacent lands. Int by lateral artificial trenches by
which the water l. taken from its natural bed and
al tfrs@l over l4rrg trlefs on which Il l. aI.Oriel- 81
that the lower proprietor i materially affected by the
manner and 70 tie extent in which the upper owner
makes use Of the water. As this use Il not what
would ordinarily be regarded as 4 natural incident 10
the land bordering upon a water course, 1t becomes
o matter Of easement Or seryitude, If continued long
enough, and under proper circumstances, and creates
n prescriptye right.
such, in brief, was the case REFERRED to, and the
questions involved were-ls;, If the upper owner had
diverted more water than ne had 4 prescriptiye right
TO DO, TO the injury Of the lower owners mill and
crop which he was cGltivating: II, Whether, as he
had a prescriptive right To divert the water for the
production Of a certain crop (kalo) upon certain
lands. he had i right TO Use il upon other lands in
growing a crop Of cane. 81, Whether, as in the
use Of the water upon the kalo land, n portion Of il
reached the Plaintiff : land. whereby it was ~benfttei,
aud this had been continued from time i~mmemorial,
the defendant had q right TO cease using it upon his
kalo land, and TO use it upon his cane land, and
thereby deprive the Plaintiff Of the enjoyment of the
water from the kalo land! Add, 4th, What rule
should be applied IS TO the extent Of enjoyment Of
the parties, If At any time there should be deficiency
Of water by reason Of IN extraordinary drought?
Upon these points the chancellor held that the rights
Of the parties as TO the extent &c which either could
apply the waters of the streams running through
their lands, must ne measured by the prescriptive
rights Of uses acquired by each ; that the right at
tachei 20 the estates ownel by them, and had refer
encc TO the quantity 10 be used and not the particular
mode in which it should be applied, and tat it was
whether ii WAS used in growing kalo or
cane that inasmucL as the use Of the water upon his
kalo land was artificial and for his own benefit, the
owner was not bound TO continue il, although its dis
continuance worked an injury to the adjacent owner
that the use Of the water Of the stream was 80
far the common property Of both, that if, from ex-
causes, there was n deficit in the quantity
TO supply the wants Of both, the loss should
be borne pro rata, by the estates Of the parties in in
terest. All these points are fully considered in the
light Of authorities drawn from English and American
and elementary treatises- And the case it
self and its decision furnish palpable and gratifying
evidence Of the change which has come over the
social and political condition Of a people, who, within
the memory Of living witnesses, have emerged from
barbhTi-m and ~idolatry, and are now enjoying the
light of Jurisprudence in its disPensation
by n learned and able Judiciary and an educated bar.
VS.. B~liley-PGcIfc Commercial -7drsTtiser,
FEB. Oh 1861"