The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1873-07-26
Supreme Court-In Banco, April Term,
1873
BEFORE ALLEN, C. J., HARTwELL AND wIDEIASN, j. !
APPEAL FROM WATER COMMISSIONERS OF
wAILUKU, MAUI.

BEFORE ALLEN, =. Us, MAXWELL AND N1DEMANN, il.
APPEAL FROM WATER COMMISSIONERS OF
wAILUKU, MAUI.
WTLtong ct al, -~4Ppeilees, Us. Bailey, appellant.
The parties applied to the Commissioners to decide
their rights in q certain artificial intercourse called
the Kamaauwai. The Commissioners decreed that
water be apportioned to the kalo land and to eight
acres of kula land, to which they found that water
was allotted by Kamehameha III.
A. F.. Judd and R. H. Stanley for Appellees.
C.. c. Harris for Appellant.
OPINION OF THE Court BY HARTwELL, J.-There
are peculiar difficulties in this class of cases, owing
to the facts that the deeds do not show the water
rights, and that the apportionment of water in
former times varied as the land rendered more or
less profit to the chiefs under whom it was held. The
water was originally distributed by time only, the
water-course being allotted to certain lots at certain
hours of the day or night. If at such hours the wa
ter was low in the water-course, the loss fell on the
owner of the land if high, the superfluOus water
flowed off in its natural outlets. For the kalo Gull
ture, the water remained in the kalo lot until alb
sorbed by the air and growth of the plant. the over
flow running into the next lower lot. In 1852 an
association was formed to repair this intercourse,
but as the cultivation of sugar-cane increased, dis
agreements arose between the planters concerning
water-rights, resulting in an equity suit before the
Chancellor in 1866. 1t was claimed then, that this
appellants father, from whom the appellant derives
title to all the land for which he claims water, was
using more than his share of water, and was Illegally
diYerting water from kalo TO sugar culture but the
Court held that it was not shown that more water
was then used, and that the kind of use was imma-
terisl. There are other parties in this suit than
were then engaged in controversy, but the appel
lant's land includes that for which water was claim
ed in the former suit.
The objection to the Commissioners decree IS, that
it imposes a new system of apportioning water by
extent of land, in place of the earlier allotment by
time, when it is not shown that the parties have Oh
tanned water-rights in proportion to the extent Of
their land, either by grant or by prescription. To
change the system by which water was originally
distributed, is 70 change the water-rights themselves.
We do not find from the evidence that the appel
liant has used water TO which the appelleeS have
shown title, or that more water has been used on his
land since 1866 than before. If more water has been
used on the appellants land than it was entitled to.
that IS no reason for requiring him to share 1t with
those who show no better title thereto. We find that
about one half Of the water of the kamaauwai has
been used on the appellants land for many years.
4 division Of the kamaauwai may be made by the
Marshal, restricting the water running into the ap-
pelant's land 10 one half its volume. As the appel
lees have no dispute concerning their mutual rights,
no adjudication thereon is required.
Costs Of Court TO be divided between the parties
Wilhong, Bailey and Cornwell. Each party to pay
his own costs.