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


The matches adjacent 10 the sprinrs. now held |
by defendant are not entitled to water as of a |
right obtained by prescription The evidence |
il that these matches when cultivated in kalo. |
were accustomed from ancient times to be filed
with water, as they needed it, directly from
the main auwai through openings made in the
banks. When one patch was full the water
was made TO flow into the Latch next below IL
until this was full, and when all were full the
water would be stopped off from the main auwai
by filling the cut or opening with sods or
stones. The argument is made that as these
patches had no regular DAYS allotted 10 which
tbey received their water supply, but took il
as they needed it; and as some Of the witnesses
say "furtiveIy," no right by prescription was
thus acquired.
But large number of these patches be-
lunged to the konohiki, or general land owner
in whose land some of these springs which
supply the water are situated.
By the rules of ancient Hawaiian agriculture
the konoliki patches would be entitled to wa
ter. Aud it is a general principle, and not
disputed, that a land owner is entitled to the
use of the water originating upon his land
subject only to the rights which others may
acquire by prescription. As to the patches Of
land in the immediate proximity of the springs
-
kuleaUas, and now in possession Of the defend
ant VIC are of the opinion that rights Of water
can be acquired for them by sufficiently long
and adverse open use of such water as may be
required for the cultivation Of the crop, though
the water be not taken during stated periods
of time But the konohiki, or owner Of the
lands in which these springs are, can use as
he pleases, whatever water from them has not
been acquired by adverse use by others.
The plaintiffs contend that they are entitled
by adverse possession, to the use of the auwai
full of water leading from the springs. The
defendants counsel contend that Gin regard
TO the water pumped from the defendants lots
above the ditca into either Of his lots there, he
had right 50 to de-, 1t being water arising
from a spring upon his own land; and that by
the same right they were authorized in draw
ing off the Pahukii water 10 other land of their
own. The PahukiI land being lower than the
auwai, il is certain that water could and can
reach the auwal IN no other way than by being
allowed to collect on the Pahukii lots until 1t
overhows the banks OF the auwai, and also by
its flowing, either as surface water, or by sub
terranean percolation from the Pahukii spring
into the lower Kalia spring. That the plain
tits have no right to such overflow, involving
as 1t does the necessity OF keeping their land
flow its bounds, and no right to the accretion
to Kalia spring water from surface water or
by subterranean percolation from the Pahukii
spring, citing the below mentioned authorities
in support of the position that no legal right
can be acquired 10 the continued use Of water
by subterranean percolation or from surface
flowing:
Acton vs.. Blundell, II NJ. g. W. $50.
Chasemore VS.. Richards, H. l.. $40.
Roath vs.. Driscoll, 20 Conn. $50.
SWEET VS.. Cuts, so n. II. 439.
Waffle VS.. n. Y. G. r. R., SIS Barb, 4l3.
Goodale VS.. futile, 20 n. Y. 1876.
Bliss VS.. Greedy, IS n. Y. ell.
Chase vs.. Silverstone, 62 Me. It's.
Washburn on Easements, Sections VI, VII.
The principle collected from these authori-
ties is thus stated by Washburn in his work
on Easements p. Al. at may be stated as a
| general principle of nearly universal applica-
| tion, that, while ole proprietor of land may
not stop or divert the waters of stream flow
ing in a surface channel through it, so as to de-
prive land owner whose estate lies upon the
stream below that of the proprietor first men
toned, of the use of the same, or essentially
impair or diminish the use thereof: if, without
an intention to iniure an adjacent owner, and
while making use of his own land to any suit
|
| destroys the use OF an underground spring or
current of rdter which has no known or de-
| fined course, but has been accustomed to pen
citrate and flow into the land of his neighbor,
he is not thereby liable to any action for the
diversion or stoppage of such water"
| In the first case cited: Acton Us. BlmdeH,
the Court say there is marked and substan-
| tial difference between the law as to the rights
| to enjoy an underground spring of water and
that by which a water course, flowing on the
surface is governed" Mr.. Washburn lid. p.
444) says that: "among the considerations
upon which this difference is based, is that the
one being notorious, whoever buys or grants
| it knows what passes, while the other is secret
and unknown at the time of purchase and sale,
and may be in its nature constantly shifting.
Nor can it ordinarily be ascertained what part
of the supply comes from ones own land and
what from that of another" The controlling
circumstance is not whether the stream was
above or below ground but whether it was oil
was not dscsrtdiHed and detiied as a stream. II
there is a natural spring, the water from which
flows in natural channel, it cannot be law
fully diverted by any one to the injury oil
riparian proprietors If the channel or course
underground is known, it cannot be interfered
with" Id. AS.
In summing up the doctrine that rights can
not be acquired in subterranean, unknown per-
colating water, the learned author lid. 467 and
1857 says: "When, in addition to the foregoing
authorities it is remembered that the common
law idea of prescription implies grant from
an intelligent grantor of something with which
he intends to part, to grantee who intends t.
accept it, and that open adverse enjoyment il
such cases is nothing more nor less than evi.
dence of such grant, it is difficult to see how
the idea Of such grant having been made cal
te raised, when neither party could have
known that the one was deriving anything
from the other"
Applying these principles to the case at la
we find from the evidence that the water comei
from these springs into the auwai in kuowl
and ascertained channels; they are pointed gu
by the witnesses and marked on the chart o
the land in evidence.
The principles above stated refer to natural
streams but they apply equally to artificial
water courses as this auwai is. Such has
uniformly been the decision of this Court,
right by prescription can be acquired t.
the waters of spring which came to the sur
face and make pond and flow over or unde
the banks or through a cut in the same int
an auwai constructed for the express purpos
and conducting the water to lands where
may be used for irrigation.
1t is, we think, proved in this case that thu
plaintiffs have acquired right by prescription
to the water flowing from the springs, in ques
| tion into tho auuai after the halo M fcLae n,