The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-10-06

the water for his kalo patches below. Il
was claimed BY defendant that he had
other land below which was entitled
equally with the plaintiff to water from
the overflow of the springs, and that he
only diverted by this fume the water
which he was entitled to use below.
HEIp: The fume should be removed. It
was sn unwarranted interference with
the plaintiffs method OF enjoyment OF
his easement in the water from the
springs, and injurious TO him and others.
OPINION OF THE COURT PER JUDD, Cd.
Certain springs called '.Kssikshi"
in Pauoa valley, originate in land OF
defendant. The wster comes up in
various parts of several kalo patches,
which are surrounded with banks, as
is usual. These kslo patches are on
several terraces and the water. after
supplying them, percolates through
the banks in places and also runs
through them in several small open
ings into a natural water course
which runs along the bottom of
Pauoa valley. There are other
springs in the bed OF this water
course, and the accumulated body of
water flows along and is taken out
through small auwais to the various
kalo patches through the valley
which have acquired q right by pre-
scription to use the water. The
plaintiffs kalo patches are among
these.
Other large tracts OF kslo land are
supplied with water from an suwai
which starts at some distance above
the Kaaikshi springs. The people
whose lands have acquired rights to
be supplied with water from the
Kasikshi springs have submitted to
q division of their use of the water
by duration of time said to have
been made many years ago by the
Minister Of Interior, the validity of
which is not questioned in this case.
The rainfall in the present year
has been exceptionally scanty, and,
as q consequence, springs have
lowered, streams have become re-
duced to almost nothing, and kalo
growing has suffered. We saw many
kalo patches in this valley where the
crop wss perishing.
Recently there has been put up by
defendant or by his Chinese lessee
by defendants orders, it is imma-
terial which, fume, one end OF
which was placed in an outlet of the
Kaaikahi kslo patches, which serve
as reservoirs for the spring water
which boils up in them. The other
end of the hume extends over and
across the natural water-course to
dry or kuls land on the opposite
bank of the water-course from the
Kasikahi springs. Some of the
water, therefore, which formerly ran
from the springs into the natural
wster-course to supply kalo land
below was led across this water
course, and was used to irrigate kuls
land which it is not pretended is en-
titled to water. 1t is claimed by de-
PENDANT, and it is not denied, that
defendant has other kalo land below
equally entitled with the plaintiff to |
water from the Kssikshi springs,
and it is contended that it was some |
share of this water-right that de-
PENDANT had run over on to the kula
land in the hume.
1t was not shown, however, that |
the defendant had entirely discon-
tinued the use of water on any
definite portion of his kalo land be-
low which was entitled to water, and |
had substituted his kula land on the
opposite bank as the recipient OF this |
water
Without deciding the question |
whether a water right by prescrip- |
ton to be used upon certain land
could be diverted to and used upon
another piece of land, We are OF
opinion that to do this as defendant
has done is a manifest injury to the
plaintiff.
The evidence shows that in order
TO assure flow of water in the hume
the spring patches had to be damned
up in order that they might serve as
Now, during the time
hat the outlets Of these patches
we're stopped the surplus water from
he springs could not flow down into
he natural water course and on
down to the lower lands. 1t is clear
20 us from a personal view of the
Ocus ia quo that the water would not
low in any volume into the hume
1nless the spring patches were
damned up. And even it the de-
'endant took water in the fume to
he kuIs land only during the hours
hat he was entitled to water for his
over lands, it is not clear that it
souid not be an injury TO those
whose time for the use Of water
followed his-for the disuse OF the
over auwais during his hours
would tend to make them
Try and absorb more water
when it was again turned into
hem. The defendant, as the owner
If the Kasikahi spring patches, is
to the water originating In /
hem sufficient for their needs, but |
he right to the surplus water has
been acquired by the lower land |
owners and cannot be diverted by |
means Of this Hume without injury !
% them. We therefore affirm the |