The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-04-29
OPINION OF THE COURT, BY
FREAR, ].

FREAR, ].
The defendant holds in fee or under
lease, with the exception Of certain ku-
leanas and perhaps certain konohiki
taro lands, the various lands comprised
in the great basin or amphitheater that
forms the upper OF southerly portion of
the Ahupuaa of Kailua, in the District
of KooIaupoko, on the northeasterly or
windward side Of the Island Of Oahu.
On these lands many small streams
take their rise and, augmented by
springs along their courses and uniting
at various points with each other, all
finally become one large stream at a
point near the center of the lower or
northerly boundary of this basin.
Thence the stream, further increased
along it's course by other springs as well
as by other small streams from other
portions of the Ahupuaa of Kailua, flows
northerly through this Ahupuaa along
some of plaintiffs taro and rice lands,
which it irrigates, and their two rice
mills, which it runs, and empties into
a large pond, known as Kawainui, from
which the water flows eaSterly through
other rice and taro lands of the plain
tiffs, and then, joined by the stream
from Kaelepulu pond, also in this Anu
puaa, flows northerly and empties into
the ocean.
The defendant recently constructed
an auueduct consisting of bitches and
fumes, extending several miles from
west and sast across the upper portion
of some of the lands held by him MA
unawiH. Ainoni and Makawao), and a
tunnel through the ridge which sep
arates the Ahupuaa of Kailua from the
adjoining Ahupuaa of Waimanalo, and
by means thereof diverts, whenever
needed, a portion of the water which
formerly flowed in five of the small
streams on these lands from points at
or near their sources Cthe springs
known as Kapikuakea and kailiih in
Maunawili, Kapuoou and Rupee in Ma
kawao, and the Ainoni spring., and con-
ducts this water into Waimanalo, where
it is used to irrigate the cane lands of
the Waimanalo Sugar Company.
The plaintiffs brought suit before the
Water Commissioner of KOolaupoko to
enjoin the defendant from thus divert
ing this water, and the case comes here
on their appeal from the refusal of the
Commissioner to enjoin such diversion
The defense mainly relied upon is
that no more water is diverted than the
defendant is entitled by prescription to
use upon his now uncultivated taro
lands in Kailua, and that the diversion
is not injurious to the plaintiffs.
II appears from the maps Exhibits A,
B. d. E, f, H) and title deeds on ME,
and the testimony of Mr.. Wall, the sur
Yeyor, that the defendant owns in fee
$50 acres of taro land not now under
cultivation, namely, 1857 acres in Pu-
ukaea, 7.49 in Makawao, 6.99 in the
westerly half of AinOni, 20.21 in Maui
nawili, 1868 in Kaimi, and 2.71 in lands
below the Maunawih Ranch house.
Unfortunately, the conditions are
such as to render it practically impos-
sible to ascertain by measurement the
quantity of water TO which the defend
ant is entitled as owner of these taro
lands Hence recourse was had TO the
testimony of witnesses as TO the rela-
tive and actual amounts of water re-
quired by cane and taro respectively
in other parts of these islands.
Witnesses acquainted with the rela-
tive amounts of water required by cane
and taro ON neighboring lands, and who
had transferred water from taro to cane
lands, testified that tarO requires from
three to ten times as much water as
cane, the difference in the ratio depend
ing upon whether the taro land is
tamped or not, and upon whether it is
entitled TO constant or only periodic
supply of water, as we'll as upon differ
ences of soil, temperature, wind, rain
fall and other conditions. Taking the
ratio least favorable to the defendant,
the water appurtenant to his $3.50 acres
of uncultivated taro land should be suf-
ficient for three times that area of cane
land, or 1910 acres.
Again, witnesses familiar with taro
cultivation testified that taro requires
from eight to twelve Inches of water a
week; and witnesses familiar with cane
cultivation testified that cane requires
about three inches of water at a time,
three or four times a month. Taking
also from these figures those least ia
vOrable to the defendant, that is, three
inches of water week for cane and
eight for taro, substantially the same
result is obtained-that taro requires
about three times as much water as
cane
Mr. Chalmers, the manager of the
WaimanalO sugar plantation. testified
that the water diverted would irrigate
from 100 to 125 acres of cane. If so, the
water diverted is, according to the
above estimates, somewhat less in am
cunt than the defendant is entitled to
use upon his uncultivated taro lands.
But this testimony is not altogether sat