The Hawaiian gazette., 1895-12-27

!
then than now.
The plaintiffs, while contending thai
they have the right to use the wstel
on the maksi lands irrespective of the
days allotted in the system they con-
tend for to each individual land, urge
that the defendants right to wstei
mauka is limited to the use of the
water only on the assigned day aud
chat failure to Use it on that particu-
lua day works forfeiture of it until
the "day" comes around again. So a
kalo patch, through any misadven-
ture hot getting its water on its par
ticular day, might be without it for
twenty two days. Their contention
goes further, they claim that the
various kuieaua holders defendants
are not authorized to exchange water
with each other, and that water as
signed under the water system under
discussion to particular land cannot be
used upon another land on that day.
We cannot agree with this contention.
The right to Use the water on q GER
tain land on a certain day being .stab
lishei by prescription gives the owner
of the land 30 far forth the right
to use that wafer as he chooses,
and he may allow part of ii or
all of ii TO be used elsewhere,
provided this diversion does not in =
juriously affect Others. The principle
that water may thus be diverted has
been abundantly established by decis-
ions of this Court. See Peck V.
Failey, Haw. SIS; Kahookiekie v.
K-anini, S Haw. 80: Lonoaea V. Wal
luku Sugar Co., 8 Haw. 65l. 1t is an
important principle for the plaintiffs
as well as defendants 1t is evident
from the testimony that the intent
and spirit of the ingenious eleven
day" system of water supply il this
locality, elaborated from long expert
ence by men whose aim was TO secure
equal rights to all aud 10 avoid quar-
rels, was to give the mauka lanhs in
rotation sufficient water for the sue
cessfuI growing IF kalo And it must
be remembered that the mausa lands
We're 10 have their water first While
the system must in general he pre-
served, that is, the two grant divis
ions and the subdivisions Of the va
rious lands by am- aud the rotation
of the water supply a a0ove set forth
must continue the system must con
tinue to have the other {, arur which |
it had under the old kOuohikis. We
shall enumerate these later.
1t is beyond the province OF this |
Court TO adjudge aud decree that each |
kuleana holder shall lamp his patches |
and banks when replant.ng aud KEEP |
his auwais free from weeds and grass
under penalty of being deprived of his |
right 10 water. Self interes ought To |
secure good hu-bandry. But it is
equally impossible for thi- Court to
require the plaintiffs To display the |
same spirit OF accommodation to the |
of a particular kuleana
holder that was in the old konohikis
The detail of the execution of the
system of using the water in question
must be left TO the honesty and fair
ness of the parties interested. We
IAN only pass upon the legal rights
involved.
We are authorized by the statute to
make "such decision as may in each
particular case appear to be in con-
with vested rights and be Just
md equitable" We find therefore as
oilows:
The lands watered from the Kaua-
lila stream are separated into two
principal divisions. Division one con
lists of the lands from Waioee to
'OlaikI, including both. Division two
consists Of the lands from Puunauiki
o Waipaahao, Including both. Prin-
ipal Division one comprises the fol-
owing named land-: |, Wainee and
'akala; ., Wainee two: 8, Wainee
ne; 4. Mokuhinis; 5, Puaanui; 6,
'uaaiki and Waiokama; Z, KOOka;
, Alto; 9, Ksmani anu Ilikabi, 10,
IL, Polaiki.
Principal Division two comprises
he following named lands: /, Puu.
auiki; ., Puunau Nui; 3, Puunau
nd Kaulalo; 4, Ha'akaa; 5, Puehue-
uiki; 6, Puehuehu Nui: Z, Puehue-
upiliwale; S, Makila; 9, Pahoa; 10,
'uupapai; IL WaipaahaO.
These two principal divisions take
be water for eleven consecutive days,
ne division by day and the other 10y
light, and when the eleven days are
Ompleted the division taking the
'ater by day takes it at night aud
ice versa, in endless rotation In
4ch principal division each of the
lDds comprising il is entitled to the
alter for twelve hours, by day or night
: the case may be, in rotation in the
r'ier As their names are given ABOVE.
The lands of Kauaula and Makila
Dove the head of Piilaui suwsi are
ltitled TO water whenever needed
ithOut reference to days. Kuia Is
ltitled to water on Kooka's day and
aleu- TO water on Puupapai's day.
The whole of the Kauaula stream is I
ltitl.d TO be turned into the respec
We auwais when the assigned day or
lght comes round, for the use of the i
nd whose day or night it is accord
lg to the above schedules. The
mount of water to be turned into any .
auwai is not discretionary
it'll plaintiffs.
The kalo pstches mauka are firSt to
: filled full 10 the brim or top of the
1aunss (bsnks) and the auwai to be
len closed at its head and the water
in the auwai is to run down
the patches then 3ust filed ami lot
the laud whose turn comes next.
Then these mauka patches are fully
applied and the auwai closed the
alter will continue on in the bed OF
IL stream TO the lands of the same ,
anne below during the rest of the
law" 4