The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-11-03
JUDD, CD, FREAR AND WHITING, j.
OPINION OF THE COURT. BY FREAR, ].

The plaintiff and the principal defendant Elizabeth Booth
the respectively of certain lands situated between
the Manoa and Paoo streams Waikwaena, in Honolulu
These lands adoin each other the defendants being above
the plaintiffs The question in controversy is whether the
plaintiffs land is entitled water from the AIanoa
through ditch the defendants land.
There spring, called Kalaepohaku, the boundary
line between these lands, from which there formerly
considerable flow Of water but which land this also the
with the Kanewai spring higher up whose formerly flowed
the ditch above menoned has been nearly dry for
years consequence probably of the sinking of arteian wells
by From the testimony of the witnesses whole
and from the lay of the land and the location of the spring.
there be little doubt that the greater portion of the plain
s land probably all but the few higher patches
the Manoa and adjoining the defendants land depended
upon this spring for The question Is therefore, prac
cay whether the remainder of the land these few patches
also depended upon the Kalaepohaku spring entitled
TO water from the AIanoa stream
The lay of the land would indicate that these patches
would naturally have obtained their from the Manoa
and yet appears by that they could
have been irrigated by the Kaaepohaku water The testi-
mony of the witnesses for the plaintiff to the effect that her
land always entitled through this ditch,
without however specifying the amount either by quantity
by tme also that this flowed her land from the
defendants through regular channel and that her land de-
pended only in part upon the Kaaepohaku spring On the
other hand the testimony of the witnesses for the defendant
the effect that the in the ditch from the ManOa
and Kanewai spring belonged to her land and the
Kanewa land alone and these lands aeTnated In the
the water each taking the entire for day and night
time and that although of the has in the past
flowed on to the plaintiffs land this only occasionally
when there uperabundance of water the overflow of
which would naturally flow down hill plaintiffs land that
this overflow from patch patch and through any
well defined channel and merely surplus due heavy
rains and proportion belonging taken by the plain
tiff Of right; also that there less in the ditch
than there form was owing to lessened rainfall and the
drying of the Kanewa spring. consequence of which she
has been obliged the cultivation of her land;
and she contends that the plaintiffs lack of due
her defendants taking larger proportion of
than she Is entitled but due solely the diminished sup
ply of waerfrom which she and others dependent the
AIanoa and Kanewa have suffer well the plaintiff
who is dependent on the Kaaepohaku
The Commissioner found that the plaintiffs land
titled in part presumably the of the few patches
above menoned from the Aanoa and awarded
her all the the ditch for hours each day. namely
from + to o'clock, m.
Whether the plaintiff entitled any water from the
Manoa stream, very clear. If this the only question
open the appeal the decision of the Commissioner should
be allowed stand for there very clear preponderance
evidence either way and she had advantages possessed
by the appellate in that she and heard the witnesses
But there Is clearly evidence which base the finding
the of which the plaintiff is entitled,
any and the decision should least be reversed this point
and the be RENTED the Commissioner for further
dence Under these circumstances and such further
evidence may be introduced the question of the extent
OF the right if any may throw further light upon the question
of the existence of the right also think Just that the
decision of the Commissioner be reversed In and that the
be RENTED her for further evidence and decision and
it is ordered
J. u. Kdneakud for plaintiff.
" r. Castle for defendant