The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1870-03-02
Supreme COurf-In Bane0.
JANUARY TERN, 1870. d5aA

of the Wafer Commissioners.
On petition of r. Charlton and others to the
Board of Water Commissioners, to adjust their
rights TO water in Honolulu the Board made an
award Sept "a, 1869, in favor of the petitioners.
No notice was given of the petition. The ap-
pellant was notified of the award Sept. 90, by
the Chairman of the Board and another hearing
was had, at which he, appeared. and after which
hearing, the Board affirmed their first award.
No appearance was made by the petitioners,
or by the Board at the hearing on the appeal.
A. F. Judd, for appellant, filed the following
printed brief:
/. The Commissioners had no legal jurisdiction
over this case their powers being created by
statute. Civil Code, Secs. 996 and 997 Amend
ments in Session Laws, 1860, p. u. 1t must
appear that there was Controversy" between
Clegborn and the petitioners respecting rights
of water" gie ao4 81
2, The petition in this case asks the Com
misioners to regulate their rights of water; not
setting forth any controversy. Cleghorn APP
peared before the Commissioners in pursuance Of
written notice. When before the Commls-
sioners, there was nothing before them TO show
he was connected with the case; that is, there
was no issue made up between Cleghorn and the
petitioners
8. The Commissioners decided to give to the
petitioners the privilege of using the water from
the Kahehuna Auwa," as they had decided on
the oath of September, 1869. Now, on this oath
of September, Cleghorn was not made party to
the case, and had no notice of any proceedings
being ignorant of what the Commissioners had
done, until he received copy of their decision
On the 29th September, in which they informed
him, and one Kauhni that they "had merged
their respective water rights, and bad given them
the right to use the water during the first half of
every Friday, from o'clock A. NJ. till II o'clock
NJ and the water for the last half of Fridays
they had given to other parties, and had granted
them certificates therefor.
4. The Commissioners have no power to change
or affect, and more especially, they have no power
to diminish or take away an easement to land,
such as the right TO use water for irrigation.
5. The deduction from this decision of the
Commissioners is that the water belongs to
them, and that they have the right to apportion
it out as they please.
6. The petitioners lands. for which they ask
the Commissioners to give them water, are all
kula landry, and never before cultivated in
kalo, or irrigated They make no pretense that
they have right to water for these lands by
prescription. In Peck ct al VS.. Bailey. Chief
Justice Allen decided that kula land had no right
to water.
I. The effect of this decision of the Commits
soners is to take the water peaceably enjoyed by
Cleghorn's land for long period of years, at any
rate in his possession, and give 1t to lands not
entitled TO water that is, to take an easement
from one land and give it to land remote from
it, and not entitled to it by prescription.
HARTwEIIr j.: The statute, as amended by
Act of 1860 reads thus " 1t shall be the duty
Of such Commissioners to hear and
determine all controversies respecting rights of
ways and rights of water between private indi-
viduals,7 &c.
The Commissioners duties are Of a judicial
nature, and require them first to hear, then de-
termine. The appellant being no party to the
original controversy, and having no notice thereof
his rights we're not affected by the first award
But it does not follow that the subsequent action
of the Board, when the appellant became party
of his own accord, was therefore null and void
The award made by the Board after they had
jurisdiction Of the matter has force not as con-
frming its previous void award, but because juris-
diction had attached sarr-r7
But the evidence, as reported by the Commits
missioners, fails to sustain to tend to sustain
the award. The right to use water is an ease
meDt in land, to be gained only by grant or pre-
scription. The evidence merely shows the
opinions of witnesses as to the rights Of the
parties. For this reason without deciding the
point made by counsel concerning Kula land,
the award must be set aside.