The Hawaiian gazette., 1896-05-01

interdependent. Each may take only
such an amount OF water as is reason
able under all the circumstances. III
one takes more than this amount under
claim of right. although no damage
might for the time being be caused
thereby to the others, because they do
not choose to exercise their full rights,
yet il would be an injury CiHiurid sine
d.rmrO) for which they could maintain
IN action. because otherwise the wrong
full user might by long continuance
ripen into a right. When once IL has
thus ripened into right, 1t 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. II may then be utilized in any
| manner, in any place, for any purpose,
so long as no injury is caused thereby
to others. The case is somewhat anal
ogous to that of joint tenants Of 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
Ge portion adversely. the others might
well 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 right, 1t
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
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
i 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-
| tons 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,
and in the case of Pioneer Millv. 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
| kuleana holder in one ahupuaa on his
| water day to kuleana on a different
ahupuaa which had 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 islands generally,
or the interesting arguments and evil
dence adduced in this case on the sup
position that the Court might find it
necessary to pass upon this question
A decree will be signed in accord
ance with these views, all costs to be
divided.
| A. S. Hartwell for plaintiffs, Wong
Leong. Ching Sui, Vim Quon and Sam
Sing Wal Company.
| C. Brown for plaintiffs, Kaneohe
Ranch Company, Limited, Kaula and
Kaliko Kelly.
| w. A. Kinney for defendant
| Honolulu, April %, 1896.