The Hawaiian gazette., 1889-11-26

4
land. He also says, that the taro
land on the leased premises was
formerly watered from the Kiwaa
spring and Ku says he thinks that
the old ditch watered this taro land
and then inconsistentiy says they
were watered from another source,
i. e. the Kiwaa spring.
This testimony of the defendants
witnesses entirely fails, in my
mind, to break down the PLANTING
evidence supporting the allegations
of the appurtenant water-course.
The claim of the plaintiffs on this
point is strengthened by the testi-
mony of Apakeen, who cultivated
rice upon the demised premises
from the time the sugar plantation
was given up till these plaintiffs
took possession, period of about
six years, under lease from AL
bert S. Wilcox. He says in SUBJ
stance, that they got water from
the old ditch which is in dispute
and which crossed the Alo or Char
man land, that water ran through
that ditch onto the premises in
question during that whole period
up to the time the present plain
tiffs' took possession, and that after
he had been using this water for
six years, Chairman wanted fifty
dollars for use of the water, which
was paid. This witness speaks of
himself as one of the lessons of the
plaintiffs. Charman's testimony
agrees with that of Apakeen at this
point, except that he says he de-
manded one hundred dollars for
the use of the water and received
eighty. There is no evidence what
ever that Chairman had any right
to charge anyone for the use of this
water running through his land.
When he purchased the land of
Wilcox, in 1875, the ditch was
there and the water was running
through it to the the premises now
occupied by these plaintiffs, and
which Wilcox, after his deed to
Chairman, leased to Apakeen, I'M
der which lease Apakeen used this
water-course without claim or oppo-
sition from Chairman for six years.
Chairman says, 81 claim the water;
1 bought the water and ditch with |
the kAeana. don't know whether |
the deed says anything about it,"
and his deed was not produced. 1 |
am convinced that Charman's de-
mand for pay for the use of the
water which ran through, but did
not have its source in his land, was
pure bluff on his part, without
shadow of right, and that he ac-
complished his end merely through
the ignorance Of Apakeen as to his
rights.
1t may be argued at this point,
that, admitting the facts and the
law to be as 1 have found them, the
plaintiffs are bound by their lease
from the defendants to pay rent for
this water. But it seems to me
that, having found the water and
the ditch through which it runs to
be appurtenant to the land leased
to the plaintiffs, the lease which
also demises the appurtenances be-
longing to the land, binds these de-
PENDANTS who were parties thereto,
and they should not be permitted
to take advantage of the ignorance
of the plaintiffs, even though they
Iabored under the same ignorance
to obtain additional
rents for valuable interest covered
by the original lease.
Whatever may be the correct |
on this point, there is
much in the evidence and the rec
ords of the case, which supports the
plaintiffs contention that the sep
arate lease for the water-right was
not mentioned in the negotiations
Tor the lease of the premises and
that Gee Chung, the manager of
heir plantation, signed the lease of
he water from Alo, from dire ne
,essity and without the knowledge
If Kwai Hee, who appears to be
he head of the company. The
lgreement by which the plaintiffs
into partnership for the
of the demised premises
las the same date with the lease
hereof, and contains an assignment
# this lease, which was made to
xwai Hee and Gee Chung only, to
he partnership. 1t also provides
hat maIl other leases of land stu
ted in said Ahupuaa of Waipa now
Ield or that may be held by any
ne or more of the said co-partners
n his individual, or their joint
Iames, shall be partnership prop
rty;" but there is no allusion what
yer in the letters Of co-partnership
0 the future lease of this water
light, or of any water-right, thus :
strong negative testimony !
bat at the date of the first lease 3
here had been no negotiation in
egard to the water-right in ques-
ion as a distinct property from the !
emised premises. 1t is true that
r-o; Hoe r,1oHoa anufro "A fofoPu