The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-11-12


This is a case appealed from the Commits
sioners Of private ways and water rights OF
the District of Waialua, Oahu.
Counsel for the defendant moved to dismiss
the appeal for want Of Jurisdiction in the Com
missiouers upon the case stated by the record
and the Judgment thereon. The Court over
ruled the motion upon the following cOnsidera-
tons.
By the record it appears that the defendant
was duly summoned before the Commissioners
ito answer to the demand or complaint 'Koi,'
of j. O. Davis and other plaintiffs named, that
the said Along had wrongfully taken the water
of the springs of 'Kalie' and 'Pahukii' TO the
injury and damage Of the water rights of the
plaintiffs at 'Paukauwila' and ON the lands
adjoining at Kamooloa on the north"
The sole provision for the jurisdiction of
the Commissioners is found in Section 9g7 Of
the Code, as amended by act of 1860, which
reads thus at shall be the duty Of such Com
missioners 10 hear and determine all contro-
versies respecting rights Of way and rights of
water between private individuals or between
private individuals and the Government" and
in Section 99s, as amended by Chapter 10 of
1875, that ain settling such controversies the
Commissioners shall give such decision as
may in each particular case appear to them 10
be just and equitable between the parties in
terested."
The defendant coming in on the summons
and joining issue on the claim of plaintiffs
there was clearly controversy" of the sub
ject matter within the jurisdiction Of these
Commissioners. This Court in recent case
not reported dismissed a case for want of
jurisdiction when it appeared that one Ahuna
applied to the Commissioners TO determine his
water rights without setting forth claim as
against other parties, and the Commissioners
proceeded to adjadicate upon luis rights Of
water without making other persons whose
rights were claimed TO be affected, parties to
the adjudication. The decision was merely
declaration or exposition oil the plaintiffs right
to certain water, made eIparte and no OPP
portunity to be heard was afforded those who
claimed that their rights were affected by the
plaintiffs claim. We held that as the record
failed to disclose any Controversy" between
plaintiff and other parties, the Commissioners
were without jurisdiction.
The Commissioners it is conceded are not
authorized to award damages for wrongful
diversion Of water. Snch matter should be
the subject Of civil action in the proper
Court
But it is claimed by defendant counsel that
the Commissioners have not jurisdiction to
order distractions to water channels removed,
as dams, troughs or drains, or to order banks
of water courses restored, or to forbid the
erection of distractions, and in short, to ex-
ercise the functions of Court of Equity ap-
plicable TO the subject matter.
The counsel claim that the COMMISSIONER
have Jurisdiction only 10 declare what the res
pective rights Of the parties are and to pre-
| scribe the times of use Of the water to each
| claimant or the distributive share Of the same,
and the rights being settled Equity must be
resorted 10 in order to protect the enjoyment
Of the right or to redress infringements
upon it.
We do not think the Legislature intended
any such Limitation of the jurisdiction of the
Commissioners They are authorized, as we
have seen, 10 render such decision as may in
each particular case appear to them to be just
and equitable between the parties interested,
| and they "have the like power to administer
oaths, TO punish contempts, and grant adjourn
ments, to subpoena and compel the attendance
OF witnesses, to enforce judgments and issue
| execution for costs as conferred by law or
Police Courts" p. 296 Compiled Laws.
We construe this as giving the authority tc
the Commissioners TO make such orders al
may be legitimate and necessary to the efectual
enforcement of their judgment We think the
Legislature did not intend to compel parties tC
establish their rights in one forum and obligC
| them TO resort 10 another forum TO have these
rights enforced or protected. The very object
OF special Court of Commissioners in eacl
election district supposed 10 possess special
knowledge for this purpose TO settle contro.
versies respecting rights Of way and water
rights was to create forum for the complete
adjudication of such matters subject to appeal
This Commission cannot, of course, create new
privileges nor apportion and distribute watel
arbitrarily without reference to its title.
controversy must appear. 1t is Difficult
to know how a controversy could be occasionet
except by one party taking more than hi
accustomed supply of water and to accomplish
this by building dams or increasing the size
OF old dams or increasing bitches or doing
some act which must be stopped in order e
restore matters to the condition they were il
when the acts complained of were done, if tn,
act complained of should be found to be in con-
trayention Of the plaintiffs right
On reference to the numerous cases decided
by this Court on appeal it will be seen tina
many questions as to the removal of dams ant
other distractions have been passed upon b,
the Court.
The Counsel for defendant objected to tn
introduction on appeal of the evidence of wit
nesses who testified before the Commissioners
The statute, p. 295 Compiled Laws, prescribe
that the Circuit Court or Supreme Court shall
hear and determine the case in Banco and al
low tue introduction of new evidence"
This is far different from the language uset
IN appeals from the Commissioners of bound
aries which prescribes that the record of tn
Commissioners be read in evidence "and tn
Court shall allow the introduction of the evi
deuce of witnesses whose testimony is not Of
record, but not otherwise" Compiled Law
p. $50. 1t also differs from the statute concern
ing appeals to the full Court from the decisicl
of single Justice thereof There the Law
reads that "no new evidence shall be intro
duced in the Court above; provided always
that the Court above may in case evidence i
offered which is clearly newly discovered evi
dence, and material to the just decision of til
appeal, admit the same" Compiled Laws 7
pa.
On the appeals from Commissioners of PR
vate ways and water rights, "new evidence
may be introduced. We do not consider thi
to be limited to newly discovered evidence
Nor can 1t be confined TO the evidence of fresl
witnesses. We adopt more liberal view an
/ MllDeSEe
lie. Chose not examined in the Court below
or of witnesses examined below if their evi
dence shall be new and not mere repetitio
OF what was said and recorded below.
We come now to the points presented by thi
appeal on the evidence.
The defendant holds as lessee or otherwis
certain parcels of land in Waialua, Oahu, mo
which are several springs called Pahukii nu
Pahukii Xxi, Lehua and Kalia, aud othe
springs not named The water comes to tb
surface and makes something of pond sur
rounding each spring. The water flows fror
one spring or pond to another and supple
water TO many parcels or patches of Ian
adjacent divided by banks or kuaauuas, form
erly cultivated in kalo but now mainly in rict
The water from Pahukii Xxi flows into III
Kalia spring. From this largest pond or lOkt
the kalia spring, there is an ancient ditch @
auwai leading thence and passing along-sid
Of the Pahukii nui spring the auwai receive
from II a supply Of water through an openin
in its banks. Further along the auwai receive
another augmentation of it's supply Of waite
from the Lehua spring, after having passe
through several kalo or rice patches. Theme
the ditch is continued until il reaches the land
owned by the plaintiffs and supplies them wit
water. On the lower and makai side of thi
main auwai, j. e. between the auwai and Ii
river are many patches formerly planted i
kalo but which are now planted in rice b
defendant
We think it is well established by the test
mony that the plaintiffs have used the waite