The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-18

action-it not being for an injury to
the inheritance.
OPINION OF THE COURT BY JUDD, c. J..
The plaintiff claims that de-
PENDANTS have diverted the water to
which she is entitled for her land in
Pauoa, Honolulu, her right to same
being eight hours flow of water from
a spring called "Kaaikahi," on every
Sunday morning from 9 o'clock a.
NJ, to o'clock p. m, and the Com
missioner was asked to settle and
decide the controversy. The defend
ants put in an answer wrongly called
a Disclaimer" by the Commissioner,
denying that they have interfered
with any water rights of the plaintiff
in Paaoa, Oahu, and averring that
the complaint does not state what
land in Pauoa is entitled to the pre-
tended water right of plaintiff.
Among other evidence plaintiff in
troduced conveyance dated the 9Th
September 1894, from Mele Keoki
(w) and her husband N. Keanini
Haole. to @. w. Booth and Anna
Long, conveying the water right set
forth in the complaint. On the part
of the defendants there was intro
duced a lease dated the 10Th June
1891, by the said Mele Keoki and her
husband N. K. Haole, to Kwong ing
and Hong Chew, demisiDg to them
for the term of ten years piece OF
land In Pauoa, Oahu, held under
Royal Patent No. 5644. The lease
reserves a house lot out OF this land,
and contains a mutual agreement"
(0 that "of the water that flows from
the spring on the land hereby leased
one half shall belong to the piece of
land now leased to Akoi-that is the
second of my (the lessor's) pieces Of
land in Pauoa, and one half of the
water shall belong to this land here
by leased"
MeIe Keoki testified that the land
demised by the above lease contained
the spring called "Kaaikahi," and
was entitled to the water for eight
hours each Sunday from 8 a. m, to 5
p. M, &c.
The Commissioner rendered judg-
ment in favor of defendants. On
the appeal. which is taken upon the
record sent up, the plaintiffs coun-
sci makes the following points: ~
Can defendants justify, as to one
half of the water, under the lease
which has been introduced to show
that plaintiffs grantor had previous
~ parted with one half of her inter
est?
(2) Is an alleged lease not intro
duced, evidence to show that she had
previously parted with the other one
half?
(3) Is there non joinder in that
Q. w. Booth is not made party?
The last point was not made by
defendants and so we pass it by. 1t
was durable by amendment. We
think the Commissioner was right in
finding that the plaintiffs grantor,
Mele Keoki and husband, had parted
with all their interest in the water
from the spring "Kaaikahi" before
she made the conveyance to 9. w.
Booth and Anna Long. As detailed
above the lessons demised the land
containing tho spring and half of the
water to Kwong ing and Hong
Chew, and six years Of the term re-
NAMED unexpired. The lease recited
that the other half was already de-
missed to Akoi.
1t was not necessary to put IN evil
dence the lease to Akoi. Mele Keoki
was bound by the recital made by
her in the lease to Kwong ING and
Hong Chew-she could not nor
could her alleged grantee dispute it.
Being recorded it put Mrs. Long on
See Keawe V. Parker, 6
Haw. 498; Wade on the law of
Notice, Chap. ~, "Notice from title
p. 134.
It is stated by plaintiffs counsel
that it does not appear In the evil
dence that defendants are the hold
ers of the lease to Kwong ing and
Hong Chew, and so far as it appears,
the defendants are mere trespassers-
But the lease contained no covenant
against assignment and no claim is
made of forfeiture for non-payment
of rent or breach of condition. Mrs.
Long is in no better position than
defendants, for she is merely the re-
versioner of a water right already
demised to third parties. Her right
to sue is limited TO injuries to the
which is not this case.
Taylor Landlord and Tenant, sec.
l73.
In Water Right controversies, as
in actions generally, the plaintiff
must show his right of action. The
Plaintiff failed TO DO so In this case
and the appeal is dismissed.
J. A. Magoon for plaintiff; W. Il.
Castle for defendants.
Dated Honolulu, February II, 1895,