The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1895-11-01
OPINION OF THE COURT. BY FREAR, ].

( OPINION OF THE COURT, BY FREAR, ].
/ This is controversy respecting the
/ location of the dams of the Palikea
and Lsimi auwais and the relative
amounts of water which these suwais
are entitled 10 take from the Nuuanu
stream. These auwais tap the stream
on opposite sides, aud until recently
I the Laimi dam was a short distance
below the Palikea dam, but not long
before this controversy arose, the La
imi auwai was extended up along the
bauk of the stream so as to take water
from The Palikea dam.
The plaintiff whose land is watered
by means of the Laimi auwai) con-
tends that each auwai Is entitled to
one half of the water In the stream
that the point of division is the Pali-
kea dam, and that ii is immaterial
whether the water TO which the La
imi auwai is entitled il brought down
part way in the natural bed of the
stream aud then turned into the au-
wal, as formerly, or brought down all
the way in an artificial ditch. The
defendants Whose lands are watered
by the Palikea auwai and who filled
up the extension OF the Laimi auwai
as soon as il was msdel contend that
their auwai is entitled 10 take all the
water that its loose stone dam will
turn into it aud that the Laimi auwai
is entitled only to the overflow and
seepage from the Palikea dam.
The commissioner awarded one
third Of the stream TO the Lait.i, and
two thirds TO the Pa!ikea auwai This
finding is not supported by the evi.
dence.
The evidence shows that the Pail
kes dam was always made entirely
across the stream aud that there never
was an open run as found by the COM
missioner; also that while formerly
there was generally flow over as
we'll as seepsge through the Palikes
dam sufficient TO fill the Laimi auwsi,
yet that then at times, because of
drought, and more recently much of
the time, because of the action of the
Government in taking water at
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
amount flowing in the Paiikta auwai
does not appear 40 have ever been
diminished for the benefit of the La.
imi auwai. The evidence also seems
to show thar it ha~ been customary all
along the Nuuanu stream Tor each
auwai to take its accustomed amount
II water even If at times requiring all
the water 10 the stream, without Ie-
ference to lower auwais, each auwsi
depending chiefly upon springs be-
tween its dam and the dam next
above. The decision of the commits
>ioner was based in part upon the
comparative areas of the laUds irri
gated by the auwais, but the evidence
gu this point, though not very definite,
would seem 10 indicate that the Pali-
kea auwai irrigates four or five times
as much land as the Laimi auwai.
II seems to us that the Pslikea au
wal IL entitled 10 the amount of water
which has ually been turne1 into it
by its loose stone dam and that the
Laimi auwai is entitled only to the
overflow and seepage.
The commissioner taxed costs for a
a. for d hearing. The
mere sitting aud adjournment to an
other cay is not day hearing"
within the meaning of the statute. I
laws of lssS. Chap. XXVI, Sec s..
The decision of the comm issIoner is /
reversed, and the complaint dismiss
ed, costs to be paid by the plaintiff
w. c. Achi aud J. NJ. Davidson for
plaintiff; A Magoon, 5. K Kane
and J. K Kaulia for defendants.
Homo iulu, October %. 1895.