The Hawaiian gazette., 1882-11-15

| eminent pipes to the petitioners premises.
The petitioner alleges that he is in possession Of
| a promises on Emma street, Honolulu, being a
private residence, the grounds planted with va
riety Of trees and plants, and that he has had and
| enjoyed water privilege therefor from the gov
eminent pipes for domestic and irrigating purposes
furnished MIN at go per year which said privilege
has never been modified or limited by the consent
Of the petitioner That he has paid to the respon-
dent the full rate for the SIX months ending on the
first day of January, 1888, aud claims that he Is
thereby entitled to the water for this term. The
receipt is annexed to the petition.
The petitioners counsel contends that having
paid his water rate, the receipt IS contract which
binds the government to furnish him an adequate
supply of water for the term Of six months and
that the notice on the back of the receipt it not
being shown that petitioners attention was called
to it and his consent obtained is part of 1t, and
therefore the superintendent of water works has
no right to curtai petitioners water privilege in
the least. Also that the provso on the back of the
receipt is void for indenteness and that there Is
no power given by the Legislature to make rules,
etc.
The circumstances in brief are these: The petit
toner, knowing the regulation limiting the hours
of irrigation to from TO A. N. and from to P.
NJ, has generally conformed to them, but during
many days after LIST July has not had a servant
employed in attending to his garden, and so has
irrigated himself after the designated hours. For
ten days previous to the 18th of October but little
or no water flowed through his tap during the
hours from 6 to A. NJ. and from to p n, and
as his plants we're dropping he irrigated at noon
| and at such other times in which there was water
in the pipes. On occasion his tap left open
and the water flowed all night. The petitioner SAYS
this was unintentional on his part
The respondent SAYS that during the ten days
previous TO October 18th the water was low in the
lower reservoir. and that he could only fill il from
the upper reservoir at such hours as rate-payers
from the upper reservoir not using ii, as the
velocity of the water dscbarging from it prevented
their taps from running. Moreover he could not
he hncausa
with the gas machines run by the water from the
upper reservoir, and he had the further difficulty
in drawing of the water from the upper reservoir,
as certain persons having kalo patches and lands
between the two reservoirs which had the privileges
of riparian proprietors from the stream which sup
plies both reservoirs would become short of water,
unless the overflow from the upper reservoir was
allowed to pass back into the stream for their
benefit.
Water is public necessity, and, especially, in
our climate.
am Of opinion that the Government, having
assumed the enterprise of supplying the town OF
Honolulu with water, and having secured by yari-
Gus acts of the Legislature the right to condemn
the necessary land and water for the purpose of a
system of water works, which prevents private
parties from engaging in this business, it has taken
upon itself a certain duty toward the inhabitants
of the town. This is, to make available all the
water that is reasonably required and that can
reasonably be secured, and to distribute the same
equitably possible to all rate-payers- think
it would not be proper for the Government to ex-
tend indefinitely the number of distributing taps
TO new applicants without eorrespondingly increas
ing its supply. But there is no proof that it has
done SO.
But the public receiving the advantages of this
water supply from the Government owe certain
reciprocal duties to it, which to pay the rates
long they are reasonable. and to obey such
rules and regulations as may be made for the pub
lie convenience and protection, provided they are
reasonable.
have indicated that the Government has right
to make reasonable rules and regulations in re-
spect TO the water works and the supply of water
to the inhabitants.
The exercise of this authority is necessary for
the public benefit, and in order to enable the Gov
eminent properly to fulfil its obligation to all the
community in distributing the water as fairly as
may be possible In times of water famine al
must suffer reduction alike, and the Government
has then the right to restrict the of the water
by rate-payers, commencing the reduction with the
least necessary use of water, l. e.. irrigation At
the same time every reasonable e1ertion must DO
put forth to secure full supply Of water.
regard the limitation of irrigation privileges
to four hours per day, between and A. and
between and P. NJ, as reasonable and as ordl-
narily sufficient, and it is an accommodation to
the public that they may arrange with the super
intendent for irrigation during other hours when
these prove inconvenient, either from scarcity OF
water in some localities or from whatever cause.
Having found that the Government may make
reasonable regulations and restrictions upon the
use of water from its pipes, how can 1t compel
obedience to themg Not by the imposition Of
money penalty, for this would imply the right to
enforce this by imprisonment, which would be
illegal without trial by court, and, in the absence
of statute giving the superintendent of water
works or Minister of Interior tine power to infict
fines.
The only way these rules can be enforced is by -
deprivation OF the offending party Of his water
privilege. If the transgression was in irrigating
outside of the prescribed hours should say irri
cation privileges should alone be suspended if it
was possible to separate them from domestic uses
But ordinarily it is not possible to do this.
do not think that unintentionsl and only an
of neglect to close tap and thus
let water run to waste all night should subject
person to have his privilege summarily cut off.
But as have suggested, if the petitioner had
violated rule, except the invalid one suspendng
all irrigation, and had used only a small quantity
Of water TO keep his plants from dying, would |
not hesitate to grant the prayer of his petition and
order a restitution of his water privilege but he |
admits that he has for months past disregarded |
the rule of June 23d and irrigated his garden at
hours which suited his convenience, and he con- |
tends by his counsel that he is not bound to OBJ
any regulation restricting him in the use of
the water. As all these violations are BROUGHT into
the case against him / must presume it was for |
these that his water-ppe connecting with the gov
eminent main was closed by the respondent.
The AttOrney-General for the respondent offers |
TO restore the privilege thr petitioner agreeing
to conform to the published regulations. This is |
n reasonable offer IN my opinion.
Having found that the petitioner has violated |
the regulations made by the Government in the |
interest of the public welfare, and that they are |
must decline to grant the writ prayed
for. A. Francis JUDD,
Chief Justice. !
S. b. Dole, for Petitioner.
Ace, F.v