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

interdependent Each may take onl.
such an amount Of water as ig reason
able under all the circumstances. L
one takes more than this amount undel
claim of right, although no damage
might for the time being be caused
thereby to the others, because they dc
not choose to exercise their full rights
( yet it would be an injury 0RjMrid sine
/ dGmHO) for which they could maintain
an action, because otherwise the wrong
! full user might by long continuance
I ripen into a right. When once it has
thus ripened into a right, it becomes
superior and absolute right, no long
er depending upon the location of the
land upon the banks of the stream or
upon the corresponding rights OF 9TH
ers 1t may then be utilized in any
manner, in any place, for any purpose,
so long as no injury is caused thereby
10 others. The case is somewhat anal
ogous TO that Of joint tenants of a tract
of land. Each may use the common
property TO a reasonable extent, all
things considered, but if one exceeds his
rights, as for instance by occupying
one portion adversely, the others might
we'll complain even though they should
not care to occupy the land themselves,
for the time being, for the adverse occu-
pancy might ripen into right. If once
it should thus ripen into a right, it
would become superior, exclusive and
absolute right, and the occupier might
then use his portion in any way he
might please, so long as he did not
interfere with the rights of the others
in the remaining portion. For their
rights in the portion occupied by him
would be extinguished. In such case
the other proprietors would have no
more concern with his rights in his
portion than outside third parties would
have.
So far as the argument rests upon
Hawaiian usage it is based on the state
ment that such transfers were not made
in ancient times. But this is quite diff
ferent from a statement that such
transfers could not be made So far as
they were not made, it was no doubt
in most instances because there was no
occasion or means for making them, as
there is now, with the changed condi-
tions of population and society, the di-
versification and extension of agricult-
ural industries and the possession of
capital and engineering skill and appli-
ances. But we do not know as a fact
that such transfers were never made
in ancient times. We do know that in
some instances, there were several ahu-
puaas in the same natural water sys-
TEN, all receiving water from the same
stream. In this very case several of
the defendants lands are ahupuaas,
if the testimony of plaintiffs wit |
nesses is correct, and yet all be- |
long to the same water system. |
This is true also of the Kau- |
aula water system at Lahaina, Maui, |
an in the case of Pioneer Mill v Kumu- |
liilii, 10 HaW. -, this Court held |
that, although by ancient custom each |
of the numerous ahupuaas in that sys-
tenn was entitled by prescription to wa
ter only once in eleven days, yet that |
the water might be transferred by a |
holder in one ahupuaa on his
water day to kuleana on a different |
ahupuaa which had a different water |
day, provided the rights of others were /
not injuriously affected thereby There
is no difference in principle between a
transfer from one place to another |
in the same ahupuaa and a transfer
from one ahupuaa to another.
In view of the foregoing it will be I'M
necessary to consider the question of the |
application of the doctrine of riparian |
rights to the conditions existing in |
Kailua, or in these lands generally, |
or the interesting arguments and evil
dence adduced in this case on the sup
position that the Court might find il |
necessary to pass upon this question
A decree will be signed in accor3- !
ance with these views, all costs to be |
divided.
A s. Hartwell for plaintiffs, Wong |
Leong, Ching Sui, YIN Quon and Sam
Sing Wal Company.
G. Brown for plaintiffs, Kaneohe
Ranch Company, Limited, Kaula and
Kaliko Kelly.
W. A. Kinney for defendant.
Honolulu, April %, 1896.