The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-07-20
KEWAlo PEOPLE
Will Be Interested in This
Decision.
Important Rulings Of Judge Perry on Pro
rerry ana Water Rights on
marshy LauiS.

IN the equity suit OF Victoria Ward
VS.. Chas. s. Desky and +. Peck < Co.
Limited, a corporation. a bill for in
junction, Judge Perry has rendered his
decision. Complainant and each OF the
respondents sevcrally own in fee GER
tain tracts Of land which adjoin each
other and all Of which are situate in
hewalo, Oahu. Complainant also owns
in fee another tract of land situate
1T kukuluaeo. On the boundary be-
tween the premises OF the respondent
corporation and the adjoining premises
of complainant stands a bank OF earth.
originally built more than twenty
years prior TO the commencement Of
these proceedings. The land on which
this bank was built, and that imme-
diatoly adjoining IL on either side, was
low and marshy; the bank was made
for the purpose OF preventing an over
flow Of water in rainy weather from
the land which has since been acquir-
ed by the Respondents TO the lands
or the complainant and also of sup
porting the boundary fence erected
thereon. Shortly after Peck * Co. ac-
CURED the property they caused an ar
tesian we'll to DC bored thereon. When
water was struck, those in immediate
charge of the work made a cut across
the bank referred to SO as to- permit
the water from the artesIan well 10
flow over on to the complainant's land
and at the same time relieve their
own land from the burden. Complain
ant objected to the making of the cut.
and had II filed in more than once.
| but each time il was again opened by
|, The well-hCrers. Complainant then
brought suit, praying that the reopen
| ing or maintenance OF the cut be re-
strained by Injunction and also for re-
| lief or other matters Upon the COM
pletion OF the well, IL was capped, and
since that time no attempt has been
! made by the respondents or either OF
them to reopen said cut or make any
new cut across the bank. Judge Perry
says that respondent Desky's efforts,
or the contrary, have been in the
direction of maintaining the oank in
| tact so as TO prevent any overflow from
accomplishments land westward over said
| bank in times OF freshets. He is con-
vinced that neither Of the respondents
has any desire or intention to make
or maintain any cut over the BANK.
No ground existing for enjoining now
the making or maintenance OF such a
cut, the prayer FOR Injunction is de-
MED, with leave, however. To the COM
plainant 20 move for the same here
, after upon showing good cause there
for
With regard to the right OF respond
ents to eXcavate up to the very line OF
the boundary bank Judge Perry says
that beyond any doubt the law is that
complainants' soil is entitled to the
lateral support afforded it by respond
and that equity will enjoin any de-
ls.ruction of such lateral support. This
Is right which exists by natural law.
independently OF grant or prescription.
: decree against the respondent cor
lC-ation for relief from the destruc-
ticn of lateral support will therefore
te signed on presentation.
Coming to the third question in
volved, the full and free enjoyment OF
an easement in certain ditch that has
existed on her property for some forty
years, the Court is of the opinion that
the same has been curtailed and inter
fe-eG with by the construction of a
new ditch by respondents by which
means polluted waters flow into the
main ditch. For this grievance only
one practical remedy presents itself
and that is to order the new ditch
closed to such an extent as may be
necessary TO prevent the passage of its
waters into the main ditch. or old fish
way.
Concluding, Judge Perry says con-
siderable evidence has been adduced
on the subject of the levels of the land
! IN that district and the course or direc-
ton of the drainage over the surface
of the land in times OF freshets or
heavy rains. This question, it seems
to the Court. does not arise properly
IN this case, nor does the question OF
whether or not Peck & Co. are en-
Titled TO have the waters OF the
springs, If such there are on their
| land. flow on to complainant's land
over the surface in case such an over
flow results from the closing OF the
new ditch.
: decree viii be signed in accordance
with the foregoing views.