The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-04-29

! isfactory. The water diverted is no
! confined to any particular tract Of land
/ but is used unfortunately with otheI
water upon various fields, and it ap
pears from other testimony of the same
witness that far more than 125 acres
| perhaps 300 acres) of land is now cul
/ tivated in cane because of this acces
sion TO the water supply, which would
not otherwise be cultivated. The eX
PLANTATION of his testimony as whole
would seem to be that in dry seasons
or if there were but little rain through
out the year, the water diverted would
properly irrigate from 100 to 125 acres
of cane, but that, perhaps chiefly on
account of the abundance OF rain in that
district, more cane land can be Guilt
waited there than in most other dis
tricts with given amount of water fol
irrigation, because during a large part
OF the year but little irrigation about
twice month"; is required, and COM
paratiYely small amount of water can
sustain the cane without serious loss
through the short dry season, although
it could not properly irrigate the same
area throughout the year.
Let us, therefore, consider another
and more definite and more satisfactory
line of investigation. Although the
water sufficient for the taro land can
not be measured, that which is diverted
can be and has been measured. At a
time when the water was high, six
inches deep in the fiume, Mr.. Boyd, a
surveyor, found flow of 1 ,462, 4S5 gal
Ions in twenty-four hours. Mr.. Chal-
mers testified that it varied from a
million to a million and half gallons
day. The maximum amount, !, 500, 900
gallons a day, would cover about 12S
acres of cane land three inches deep
once week. This tends to confirm Mr..
Chalmers testimony as to the area that
could be properly irrigated with the
diverted water if the land depended
wholly or chiefly on irrigation. This
quantity of water would also cover $50
acres of taro land a little less than
seven inches deep once a week, that is,
seven-eighths of the minimum depth
testified to as required by taro lands in
various localities and under various
conditions.
The particular circumstances in this
case would seem to strengthen rather
than weaken the force of the conclu-
sions arrived at by the foregoing meth
DDS of estimation. 1t was shown that,
by prescriptive right, the taro lands in
question need not be tamped and are
entitled to a constant flow of water;
that such lands require and are entitled
to considerably more water than lands
that must be tamped and that have
water at stated periods only; that the
porosity of the soil and prevalence of
winds in this part of Kailua are such as
to indicate that the loss of water by
seepage and evaporation is probably
not less there than in most other parts
OF these islands; that the cane lands at
do not require more water
than other cane lands which require ir-
rigation; in fact, that cane is irrigated
at Waimanalo only about once in two
weeks, while in many places it is if
rigated oftener-in some places once a
week. This is due no doubt chiefly to
the fact that Waimanalo is on the wind
ward side of the island, where the rain
fall is greater than on the leeward
sides of the islands, where irrigation is
more frequent. Yet for this reason the
taro lands also would require less water
by way of irrigation than would be re-
Quired by similar lands in more arid To-
calities. But the greater the rainfall
the less proportionately would be the
of water required by way OF
irrigation in the case of cane lands than
in the case of taro lands, because of the
smaller area of taro land requiring a
given amount of water or the greater
amount of water required for given
area.
All things considered, therefore, and
giving the plaintiffs the benefit of un-
certainties, we are of the opinion that
the defendant does not divert more
water than he is entitled to use upon
his uncultivated taro lands.
1t is further contended for the plain
tiffs that it is unlawful for the defend
ant to divert, as he now does, from five
streams on three lands, the quantity of
water that he is entitled to from a
larger number of streams on a larger
number of lands. But, since ali the
streams in ques+ IN unite before leav-
ing his lands and all the plaintiffs
lands entitle 4 to water are situated be-
low his l9Ads, it is immaterial to them
from WI &C stream or streams the water
is divcfted.
1t is also contended that the natural
drainage from the taro lands is down
the valley, and that by the diversion the
plaintiffs are deprived of the seepage
that would otherwise reappear at lower
points in springs. The topography of
Kailua is such that surface water
would naturally flow from defendants
towards plaintiffs lands, but it is entire
ly uncertain what direction the water
would take after leaving the surface.
1t is not shown that the seepage in
defendants taro lands would take the
course of surface waters, or, if it should,
that it would reappear in the lower
springs, much less that it would flow
in known and well-de-
fined channels. Subterranean waters,
to be the subject of rights, must, like
surface waters, in general flow in
known and well-defined channels.
Gould on Waters, I'd Ed. Secs. $50, 2S1,
citing Davis V. Along, Haw. 216, and
other cases. Nor could a
right be acquired to mere
drainage water under these circum-
stances whet her on the surface or nm