The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-09-04
Before Harris. C.. J., and Nc CuAy, J.--Opinion

Before Harris. C.. J., and Met Gully, j. Opinio,
BY McCuHy, J.
Referring for the statement of the matter here
in controversy to the opinion delivered by the
Chief Justice at the hearing Cat nisi prius) which
I entirely concur. / observe upon the points pre-
sented by the plaintiffs who are the appellants. OIL
the appeal. they state facts to be that the plaintiffs
"a owners of their respective plantations were
taxed on the value OF those plantations ct last
twice as much as heretofore on account of their
connection with and right to use the water flowing
in q ditch owned by the plaintiffs as partners un
der the firm name Of Sc The Hamakua Ditch Com.
pany.'
But the testimony of Mr.. Sterling the assessor
does not accord with the statement He says -
taxed the cane land of Haiku Sugar Company at
the usual rate, 500 an acre for land under cane.
and the other land not under cane but 6t for sugar
culture at $40 an acre. Had 1 not assessed the
Ditch separately / would have assessed the uncul-
tivsted lands differently would have assessed
higher, I would have assessed land thoroughly irri-
gated at $500 an acre. The same answer will ap-
ply to Grove Ranch, Baldwin's, and other adjoining
do not find any testimony as against this that the
rate OF assessment in previous years had been half
the rate or any proportion less, bnt if the rate
now stands higher than il did several years ago, it
may be charged to the general enhancement in the
value of real estate in the Kingdom, to the opera
ton of the Act Of 1876 requiring assessments to be
at the s full cash valuation of" all property, and
TO the personal judgment Of the assessor for the
ISSss AOAA-SA - wv 49, 49, ~oeAAAO1 W ohSW
that other land in the district of like character
with that Of the plaintiffs. the property of nom
shareholders in the ditch and not irrigable from it
is rated at lower and different rates.
We must therefore conclude that as a matter of
fact the assessor did not combine the value of the
ditch with the value Of the land of the plaintiffs,
aud assess the entire value once as an appurten-
ance and again as separate property. This would
be an answer to the position of the plaintiffs that
the several interests of the PLAINTIFFS are appurten-
ant to their several plantations. and ought to have
been taxed together, that they were separated by
the assessor and singly taxed each once.
The rights OF parties herein are unlike. the
rights Of riparian proprietors. and equally unlike
the rights of irrigation aPpurtenant to land from
ancient watercourses. The argument of counsel
to establish that the shares of the plaintiffs were
sppurtensnt to the lands owned by them was
based on the fact that the water of the ditch at the
present time was entirely appropriated by the
partners in the ditch company, and none sold to
third parties. but counsel were unable to say that
any partner could not sell bis share of water to be
used elsewhere than on his own land. that any sur
veyed acre of these plantations could not be sold
without . proportional share of the water, and
that il would be so intended without an express
conveyance of such q share in the ditch. No es-
sentisl difference is found in the character of the
ditch property in this case from the case of q
partnership or q single owner of a ditch construct
ed for the purpose OF Offering water for sale at q
price per inch to whoever might purchase it. In
this case the purchasers of the water are coinci-
dent With the partners, and each taking according
to his share in the company, and the company sell
ing no water to outside parties, no partner has
anything to receive or to pay, except perhaps as
sessments for repairs. Upon examining the deeds
Of conveyance OF certain shares of plantations en-
joying the use of this water it is noticeable that
there is q distinct sale and assignment Of the gran
tors share and interest in the Hamakua ditch. In
the deed f rom Hebron to W.. o. and 3. Smith,
such q distinct sale is made. and the grantors are
constituted his Attorneys in fact TO secure bis
rights under the concession of the government to
the Ditch Company and 10 the partnership. The
plaintiffs have not therefore considered and treat
ed their interest in the water as appurtenant to
their land, and TO pass by q common conveyance
of land and its appurtenances.
Furthermore. ! observe in the original concess-
ion by the Hawaiian Government, of the right to
take the water Of certain streams lying within
government lands, that the privilege is reserved of
buying the ditch, aaueducts, bridges and pipes at
cost, and thereafter furnishing irrigation to the
proprietors at q limited rate annually per acre,
and this does not compart with the character
claimed of q right of water appurtenant to the
land. But without such a right of resumption, the
grant was for . term of years and would expire by
its own limitation. and its essential character has
not been changed by q later concession giving Q
perpetual franchise it g higher rate.
There is g significant fact besides to distinguish
this from an sppurtenant right of water, that the
Ditch Company own the piece of land called Olo-
pana. It will hardly be claimed that this is appur-
tenant to any or all OF the plaintiffs lands. Wash
bourne. R. 2. Vol. 3, pages 394-5.
It follows from the foregoing views that the
property Of the Hamakua Ditch Company could
not be taxed as merged in other property of the
partners. and rightly it was taxed as a distinct
piece of property. The Judgment OF the Chief JUS
tice must be affirmed.
Messrs. Hartwell, Austin, and Castle d Hatch
for plaintiffs. The Attorney General (Preston) for
defendant.