The Hawaiian gazette., 1889-11-26


the lease was made; that the defend
ant Alo being one of the plaintiffs
lessons had at the date of the lease,
power to grant the water course, he
having taken q lease of it from Mr..
Chairman Cthe true date of which
must be taken to be 1st November,
1881, and as Alo (defendant) did
not reserve the water right in the
general demise of the rice planta-
ten, it passed in law to the plain
tiffs as an actually used appurtenance
of the demised estate.
The lease of the estate, which /
shall call the first lease, was pre-
pared and signed in Honolulu the
same day the plaintiffs articles of
copartnership were executed. The
second lease (of the water right
was prepared and executed in
Kauai, and Gee Chun alone signed
it on behalf of the Un Wo Sang
Company.
Kwai Hee of the plaintiffs says
he was present on this land at Kauai
when Alo defendant pointed it
out to him and Gee Chun and that
Alo and Apakan (both Of them les
sorS) said that the ditch belonged to
the land. Apakan says that the
previous Company (the Han Tail
of which he, Alo and Asee were
members, had used this water from
the Chairman ditch for six years and
only at the end, when Chairman
heard they were using it, that they
paid for it $50 for the six years.
Chairman says when he heard the
Cinnamon were using his water he
demanded 500 rent and got $50.
Alo CdefendanD says, he acquired
the Chairman kuleana while the
Han Tai Company were in posses
sion of the rice lands; and that the
Han Tai Company paid him for the
water-right as they had no (other)
water; that he told Kwai Hee when
looking over the land that it was
his own water-right; and that Kwai
Hee came to see him about the
water-right for which he first asked
$3.50, but at Asee's solicitation he
agreed to let the I'm Wo Sang Com
pany have it for $500, and that $3.50
of it was to be deducted from the
$1,000, the original rent agreed
upon; and that Gee Chun signed
the lease on Kauai. 81 said, the
water is separate from the rice land.
Kwai Hee was told this"
The contradiction between Kwai
Hee and Alo being so complete
upon the question whether in the
negotiations the water was to be
separately considered or not, it is
much to be regretted that Gee Chun
who was the resident manager of
the plantation and signed the second
lease himself, was not produced as
a witness. 1 believe he is absent |
in China. AT any rate it is not dis
puted that he signed the lease and |
deliberately bound the company of
which he was by the article of CO.
partnership manager for two years,
to pay 5000 year for the water.
He could not have understood, as
Alo certainly did not, that the first |
lease which demised the rice land |
which the remaining members of |
the Han Tai Company owned, car
ried with it, as appurtenant, the
water right which Alo alone had |
the right to, by lease from Char
man. If the second lease had not |
been taken, the claim OF, plaintiffs
could well be made that Alo's join
ing in the conveyance the first |
lease) passed the water-right as an
appurtenance, it not being reserved /
in the lease,-although 1 do not |
think it would strike one of this
class that a lease of partnership |
property would carry with it the
property of an individual member.
While not going to the extent of
saying that the plaintiffs are estop-
ped by the second lease, it seems
to me to support AIo's contention
that the negotiations for the water
right were a part of the original
transaction and were not fully set
tied until the manager Gee Chun
and Alo had met again on the
premises after the first lease was
signed.
The law contended for by plain
tiffs counsel that the ssgrantor con-
veys by his deed as an appurtenance,
whatever he has the power to grant,
which is practically annexed to the
granted premises at the time of the
grant and is necessary to their en-
ioyment in the condition of the es-
tate at the time" (Phi5rick Us.
Elcing, 81 Mass. 1881 is not con-
troverted by defendants counsel.
think the law is well settled as
by plaintiffs; but having
found that the two leases were one
and that it was the I'M
1erstanding and intention of the
parties that Alo should give a separ-
ate lease for his water-right and
receive separate rent therefor, the
rule of law above approved does not