The Hawaiian gazette., 1876-12-06
AN INDEPENDENT JOURNAL.
WEDNESDAY. DECEMBER 6.
supreme Court OrIhe Hawaiian Is
lands.
RailaEp Sugar Company rs H. a. JYicIenUn
and Charles c. Harris.
IlGa ordos BY jun. ]. l33

This is an appeal by the respondents, proprie-
| tors of the Waikiki Sugar Plantation, from u
decision OF the Commissioners of water rights Of
the district Of Waikiki, Island Of Maui, rendered
Oct. 18th 1873. which decision is US follows:
~Ilmt tile lele formerly belonging Ito the
father Of Kaeo, and now the property OF the
! Waikiki Sugar Company, and containing about
six acres, Is entitled to wHter from the Maiehu
Stream OF ditch running on the south side of the
Waiehu Valley and that said piece or parcel OF
land shall be watered on the "Wednesday OF each
and every week from said ditch, and Us soon as
the land is watered the water TO be turned into
the said stream or ditch for the use OF Others
and no other land belonging to the Wauku
Sugar Company shall be watered from said
stream or ditch flowing from the Waiehu Valley"
This appeal was taken TO the Supreme Court
in banco and owing TO the First Associate Just
ice being one OF the respondents and the alb
sence of the Chief Justice, it was agreed to sub
nit the case TO the final decision OF the Second
Associate Justice. arf
Further testimony was taken at Waikiki on
this appeal on the 18th June. 1876, and the
argument was had on the 22nd July.
1t was agreed at the argument that the plain
tiifs purchased the land the right TO use water
On which Is the subject matter of this contro-
yersy on the l9th July, 1864.
The respondents contend that the land in
question is described as Kula" land in the
award aud therefore took no water by the grant;
and the plaintiffs contend that the decision OF
the Commissioners should be sustained because
this land is lele' of the Ahupuaa of Walehu,
aud therefore entitled TO water. But the title
itself to wit, the Land Commission award. would
show these facts. if they were true, but it is
not in evidence it is therefore impossible to
consider tile positions taken.
The testimony of the witnesses seems to me
TO prove quite Clearly that this land was an
ciently wuttsred from the Waiehu STREAM as the
waler,lead and the kao patch banks on it would
Indicate. but that it had not had water used on
it for The purposes Of irrigation for a period Of
over twenty years previous to its sale to the
plaintiffs in 1864, aud that the specific use and
appropriation of the water on this land since this
date has been less than twenty years.
But there is no testimony in this case as to
whether within the period (belore 1864 while
the right to use water on this land was not ex-
erclsed, there has been an adverse enjoyment of
his wafer by the respondents or other lower
propnetUrs, in consequence OF the nonuser,
against which it would be negotiable now to
enforce the old easement.
10 order, also, TO settle satisfactorily whether
the use of water for the purposes of irrigation
is, in an arid climate. a natural want as distin-
guised from an artificial want independent of an
established Prescrplion) it would depend good
deal upon the question as to whether the party
claiming the use of the water for irrigation is u
riparian proprietor; pow the settlement Of the
question whether lands upon an ancient but
artificial water-course have the incidents of ri
parian proprietorship would depend largely upon
the fact whether such water-course was accus-
toned to flow uninterruptedly and with the
~. II III, a.,
there is no evidence.
Alter patient and anxious study of this case
l have come TO the conclusion that the judg-
ment of the Commissioners should be auuulled, |
for 1t was evidently founded upon the idea that |
the land in question was "lele of Waiehu,"
which, as indicated above. is not proved. and |
until proved, the discussion TO whether a |
" lele" of an Abupuaa lying outside Of Its bound |
aries is entitled to be watered from the Ahupuaa |
would be idle.
But in setting aside this award of the Com
mssoners, do not say that the plaintiffs have |
no right to use water on this land nor do | say |
that this tight TO water is shown to belong to
or that by the failure of the plain. |
titfs to show title to tit belongs to the re-
spondents for | am unable from want of sufficient |
testimony to say definitely what the rights of |
either plaintiffs or respondents are am at loss
nissioners based their award of the quantity of |
water which the plaintiffs might use Oh this land
10 wit: on every "Wednesday, sufficient to water it
they not having before them as parties the
1ther landowners using water from this water
course, and there is no testimony as TO the
amount of water used by the respondents and
)ther parties on their lands below from the same
-
The Statute says that in settling such contro-
'ersies the Commissioners shall give such de-
.siOn MS may in each particular case appear to
hem to be just and equitable between the part
es interested such decision, however, must be
BASED on evidence.
/ consider that the Appellate Court has,
Inder the Statute constituting this Commission,
he same powers.
Ny decision is that the award Of the Commits
toner's be annulled that the plaintiffs use the
Tater on this land as they had been accustomed
o use it at the time these proceedings were in
tinted and without prejudice to the right of
ither party to bring a bill or such other pro-
eedings as may be deemed advisable in order
o determine the rights of the parties interested.
A. FRANCIS JUoD,
Second Associate Justice Supreme Court,
A. S. Hartwell, for plaintiffs; w. G. Jones,
Dr. respondents.
HouOlulu, II. l., Oct. 30, 1876.
iupreme Court of the Hawaiian Is.