The Hawaiian gazette., 1896-05-01
OPINION OF THE COURT, BY
FREAR, J.


The defendant holds in fee or under
Alease, 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 or southerly portion of
the Ahupuaa of Kailua, in the District
of Koolaupoko, 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
point near the center OF the lower or
northerly boundary of this basin.
Thence the stream, further increased
along its 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 il irrigates, and their two rice
mills, which it runs. and empties into
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 Ahu-
puaa, flows northerly and empties into
the ocean.
The defendant recently constructed
an aqueduct consisting of bitches and
fumes, extending several miles from
west to east across the upper portion
of some of the lands held by him MA
unawili, Ainoni and Makawao), and
tunnel through the ridge which sep
arates the Ahupuaa of Kailua from the
adjoining Ahupuaa of Waimanalo, and
by means thereof diverts, whenever
needed. portion of the water which
formerly flowed in five of the small
streams on these lands from points at
or near their sources 0he springs
known as Kapikuakea and Kailiili in
Maunawili, Kapuou 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.
1t appears from the maps Exhibits A,
B, d, E, F, HI and title deeds on file,
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, 749 in Makawac, 6.99 in the
westerly half of Ainoni, 20.21 in Maui
nawili. 1903 in Kaimi, and FL in lands
below the Maunawili 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 neighboringlan 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
,1x- tndi
supply of water, as well as upon differ
elces of soil, temperature, wind, rain
fall and other conditions. Taking the
ratio least favorable TO the defendant
the water appurtenant to his $50 acres
OF uncultiyated 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 time,
three or four times month. Taking
also from these figures those least ia
yorable to the defendant, that is, three
inches of water a 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