The Hawaiian gazette., 1886-06-22
Supreme Court, of the Hawaiian Islands,
In Eqnity. In Banco. April Term, 1855.


BEFORE JUDD c. J. M'cUn1r AND PRESTON IL.
Opinion Of tie Court per JUDD CO.
This is an appeal by plaintiff from decision
Of Mr.. Justice McCully sustaining demurrer
to the bill filed, which was for an injunction
to restrain defendant FROM opening water
way through bank, whereby the waller from
defendants land was discharged upon plain
tiff's,land. The plaintiff is the reversioner.
The bill, after reciiinc the situation oil the
lands of the respective parties, and showing,
among other things, that there was a bank
which separated plaintiffs and defendants
lands, and protected plaintiffs laud from the
influx of water from defendants land, but that
defendants have opened waterway through
the bank, so that the ditch which was for
merly used to supply water to plaintiff land
became drain and conveyed and discharged
the waste water from defendants land upon
plaintiff land, whereby it was flooded and
was liable to become unfit for use, which conf
plainant alleges was 4 new and unheard of
use thereof, and one to which it had never be-
fore been put, and for which use no right ex-
listed: onplaindnfS leSSees therefore obStrWcted
said trdter-,ray through SAID bank and pre-
rented tie draining Of defaidRt's lands upon
The land Of complainant"
1t thus appears by the italicized portion of
the bill above quoted that the waterway COM
planned of was obstructed by complaiuants
lessee. The injury to plaintiffs lands have
thus ceased There is no allegation that it
has been re-opened by defendant, or that lie
has threatened to reopen it. We think the
bill is demurrable on this ground. No continu-
ing injury is alleged, and none is threatened.
The prayer for injunction says that "by rea-
son of the premises, irreparable injury will be
done 10 the reversion, etc." The 'premises"
arc the stating part of the bill, in which it is
alleged that the acts complained Of are at an
end.
Whether the injury by flooding plaintiffs
land, is likely to produce permanent injury to
the reversion, it seems to us would be a mat
ter of fact which the Court could not decide
without evidence.
The ground upon which the demurrer was
sustained by the Court below, is not so clear.
An action was brought in 1884, by defend
ant against PLAINTIFF lessees, for stopping tho
waterway through the bank above referred
TO, and damages recovered. This is alleged
in the bill, and it is urged by defendants
counsel that it shows that there is doubt as
to the legal right of the plaintiff to maintain
this projecting bank unopened. Counsel say
the Court should not grant an injunction in aid
of legal right unless the right is clear.
An examination OF the case will show that
the question of the right of the defendant 10
maintain an opening through the bank was
not gone into. The question cannot then
be considered as res dqiuiicafa. When per-
manent injury to real estate is threatened and
equity is appealed to for an injunction, the
Court must necessarily investigate the rights
Of the parties TO the easements which it is
commended exist. On this ground We do not
think the bill was demurrable.
The demurrer is sustained without pre-
judice TO the right Of the plaintiff to amend or
file new bill in twenty days.
W. R. Castle for plaintiff; +. NJ. Hatch for
defendant
Honolulu, June 9Th, 1886.