The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-10-30
OPINION OF THE COURT, BY FREAR, J.

OPINION OF THE COURT, BY FREAR, J.
This is a controversy respecting the
location OF the dams Of the Palikea
and Laimi auwais and the relative
amounts of water which these auwais
are entitled TO TAX from the Nuuauu
stream. These aUwaIs tap the stream
on opposite sides, and until recently
the Laimi dam was short distance
below the PalIkea dam, but not long
before this controversy arose, the La
imi auwai was extended up along the
bank Of the stream 80 a. TO take water
from The Palik-a dam.
The plaintiff whose land i watered
10y means of the Laimi auwai) con-
tends that each auWai l. entitled TO
one half Of the water lii the stream
that the point Of division il the Pail
kea dam, aud that il j. immaterIal
whether the water to which the La
imi auwai L. entitled j. brought down
part way ia the natural bel of the
rTeam aud then tuTue: into the au-
Wal, "a formerly, or brought down all
the way III an artificial ditch. The
defendants whose lands are watered
10y tine Palikpa auwai ami who filled
up the extension Of tine Laimi auwai
"a soon as 10 was made contend that
their auwai i entitled to- take all the
water that its loose stone dam will
turn into IL ami that the Laimi auwai
i entitled only To the overflow and
serpage from the PaiIkea dam.
The commissioner awarded one
third Of the stream to the LaiLi, and
two thirds TO the Pa!ikea auwai Tnis
finding Is not supported by the evi-
dence.
The evidence shows that the Pail
kea dam was always made entirely
across the stream and that there never
was an open run as found 10y the COM
missioner; also that while formerly
there was generally flow over as
well as seepage through the Palikea
dam sufficient to fill the Laimi auwai,
yet that then at times, because of
drought, aud more recently much Of
the time, because of the action of the
Government in taking water at q
higher point, there has been only see
page through and no flow over the
Palikea dam, aud that Notwithstanding
the diminished quantity Of water, the
flowing III the Paiikea auwai
does not appear 20 have ever been
for the benefit of the La
imi auwai. The evidence also seems
to show that it has been customary all
along the Nuuauu stream for each
auwai to- take its accustomed amount
81 water even II at times requiring all
the water III the stream, without re-
ference to lower auwais, each auwai
1ept nGing chiefly upon springs be
tween its dam and the dam next
above. The decision of the commits
-ioner was based in part upon the
imperative areas of the lands iTri
gated by The auwais, but the evidence
DH this point, though not very definite,
would seem To indicate that the Pali- .
kea auwai irrigates four or five times
a. much land as the Laimi auwai.
IL seems to- Us that the Palikea au- F.
wal II entitled To the amount of water
which has u ullly been turueI into it .
~ its loose stnue dam and that the
Laimi auwai l. entitled only to- the
overflow and seepage.
The commissioner taxed costs for a
a. for hearing. The
mere sitting and adjournment to an
,tner Gay Is not days hearing"
within the meaning of the statute.
Laws Of lSSS. Chap. N\NI, Sec. -.
The decision of the commissioner Is .
reversed, and the complaint dismiss
"a, costs 10 be paid by the plaintiff
w. G. Achi aud J. NJ. Davidson for
plaintiff; J y. Magonn, :. X. Kane .
mi j. X kaulia for defendants
Honolulu, October % 1895.