The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-06-29
OPINION OF THE COURT.
BY JUDD. G.. J.


This case comes to us by appeal from
| decree of Circuit Judge of the First
Circuit, granting an injunction against
defendants maintaining a dam. The
facts, succinctly stated, are as follows:
! The plaintiffs have a rice plantation at
| Waikele, Eva, Island of Oahu, of about
forty acres in extent, bordering on the
| Waianae side of the Waikele river. This
land has been in the occupation of the
plaintiffs for many years, and large
proportion of it has acquired by pre-
scription the right to drainage into the
Waikele river.
The defendants have lately come into
occupation of a quantity of land not en-
titled to water by prescription on the
opposite (Honolulu) side of the said
river, but below it and nearer the sea-
This land they are now making into
| rice plantation, and in order to irrigate
it, were at the time the bill was filed
constructing dam across the said river
in order to raise the water of the river
sufficiently high to flow In a ditch to
their land. The dam has since been
completed. The members of the Court
visited the premises on the goth March
last, since the argument of the case on
appeal.
Without discussing the testimony ad-
duced in detail, which is voluminous
and contradictory in some respects, we
find that although there is an embank-
ment between the defendants planta-
ton and the river, somewhat higher in
general than the embankment between
the plaintiffs plantation and the river.
the general level of the two plantations
is about the same. Each plantation has
very gradual slope, so that they can
be irrigated, as rule, by letting the
water from one rice patch to the next
one below it. Where in portions of the
plaintiffs land this method is not pos
sible owing to many of the patches be-
ing on the same level, water is con-
Quoted to the patches below them by
Independent bitches.
The plaintiffs claim that the Waikele
river is subject to heavy freshets which
occasionally are so great as to overflow
the land on both sides of the Waikele
stream, to the damage of the rice plan
tations. We understand that the plain
tiffs admit that these exceptional fresh
cts of extraordinary volume would not
be materially increased in their dam
aging effects by the presence of the
dam, but that there occur frequently
dam would seriously augment and cause
the water to flow upon the plaintiffs
plantation to their damage, and that
the presence of the dam is constant
menace. The effect of the dam is to
raise the general level of the water of
the river little over two feet above
its normal height and to back the water
up the river a cOnSiderabl distance.
Plaintiffs witnesses say that the water
in these frequently occurring large
freshetS would be raised by the dam SO
that the water would overflow the river
bank on the plaintiffs side, it being
lower than defendants, and thus great
ly damage their plantation. This is dis
puted by defendants witnesses None
such freShet is testified to as having Oc-
Cured since the dam was completed
and on an inspection of the premises
and as a result of experiments made in
closing and opening the gates of the
dam, we are not convinced that such
would necessarily be the case, the banks
in the immediate neighborhood of the
dam being high enough to confine the
water of ordinary freShetS to the river
bed. We ought not to enjoin the main
tenance of a dam without which the
defendants enterprise would perish up
on conjectural testimony. Where the
liability to injury is doubtful, the ex-
traordinary remedy by injunction
should be withheld, and we are not con-
WINGED in this case of the imminence
of the danger. High on Injunctions,
Sec. %, says: can Injunction should
never be granted except in a clear case
Of irreparable injury, and with a full
conviction on the part of the Court of
its urgent necessity
The other ground advanced by plain
tiffs for the injunction is that the dam
by backing up the water of the river
will interfere with the effective drain
age of plaintiffs lands We find
that it is essential in rice cultivation to
drain off the water from the rice
patches twice during each half yearly
crop. The land should be drained first
about two months after the rice plants
have been set out, and be without water
for from one to four weeks, according
to the nature of the soil, in order to