The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-11-02
OPINION OF THE COURT. BY FREAR, J.

The plaintiff and the principal defendant Elizabeth Booth
the respectively of certain lands situated between
the Manoa Wakiki-waena, in Honolulu
These lands adon each other the defendants being above
the plaintiffs The question in controversy is whether the
plaintiffs land entitled water from the ManOa stream
through a ditch the defendants land.
There spring, called Kalaepohaku, the boundary
these lands, from which there formerly
considerable flow of water but which (and this also the
with the Kanewa spring higher up whose water formerly flowed
into the ditch above menoned has been nearly dry TOR some
years. consequence probably of the sinking of artesian wells
by From the testimony of the witnesses whole
and from the lay of the land and the location of the spring.
there that the greater portion of the plain
land probably all the few higher patches nearest
the anoa and adjoining the defendants land depended
upon this spring for water The question is therefore, prac
tcay remainder of the land these few patches
also depended upon the Kalaepohaku spring entitled
o from the Manoa
The lay of the land would indicate that these patches
would naturally have obtained their water from the Manoa
stream and yet appears by measurement that they could
have been irrigated by the Kaaepohaku The test
mony of the witnesses for the plaintiff is the effect that her
land always entitled water through this ditch,
specifying the amounts either by quantity
by tne also that this water flowed to 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
effect that the in the ditch from the Manoa
stream and Kanewai spring belonged her land and the
Kanewai land alone aternated the
water taking the entire for day and night
time that although of the has in the past
flowed the plaintiffs land this only occasionally
there superabundance of the overflow of
which would naturally flow down hill plaintiffs land that
this overflow from patch patch and not through any
and proportion belonging taken by the plain
of right also that there less the ditch
than there formerly owing to essened rainfall and the
drying of the Kanewa spring. consequence of which she
has been obliged the cultivation of her and
she contends that the plaintiffs lack of is due
her defendants taking larger proportion of water
than entitled but due solely the diminished sup
ply waterrom which she and others dependent the
Manoa and Kanewai water have suffer well the plaintiff
who is dependent OF the Kalaepohaku water.
The Commissioner found that the plaintiffs land
titled part presumably the extent of the few patches
to her ditch for hours each day. namely,
from 4 o 6 o'clock, a. IN.
Whether the plaintiff is entitled any from the
stream, very clear. If this the only question
open the appeal the decision of the Commissioner should
be allowed stand for there very clear prepondeance
of evidence either way and she had advantages
by the appellate that she and heard the witnesses
But there clearly evidence which base the finding
the of water to which the plaintiff is entitled,
any, and the decision should least be reversed this point
and the be RENTED to the Commissioner for further
dence Under these circumstances and since such further
evidence may be introduced the question of the
of the right if any, may throw further light upon the question
of the existence of the right as think just that the
decision of the Commissioner be reversed IN toto and that the
RENTED her for further evidence decision
it is ordered
j. IL. KGneGkuG for plaintiff.
n r