The Hawaiian gazette., 1899-07-21
kEwAlo PEOPLE
Will Be Interested in This
Decision.
important Pulinss of Ju5se Perm on Pro
rerty AMI water Fights on
Marshy Lands.

IN inc 'pulN. suit VI NlNAolid "dA"
W.. Chas. ). Desky and +. Peck q Co.
Limited. a corporation, bill for ia
junction, Judge Perry has rendered his
decision. Complainant and each of the
respondents seyerally own in fee GER
tain tracts of land which adjoin each
ether and all OF which are situate in
kewalo, Oahu. Complainant also owas
IN fee another tract of land situate
n Kukuluaeo. On the boundary be-
tween the premises OF the respondent
evaporation and the adjoining premises
q complainant stands a bank OF earth,
originally built more than twenty
years prior to the commencement of
these proceedings. The land on which
Uzis bank was built, and that imme-
AiAtely adjoining 1t on either side, was
tuw and marshy; the bank was made
Or the purpose OF preventing an over
Sow Of water in rainy weather from
Sde land which has since been acquir-
vi by the respondents TO the lands
- the complainant and also of sup
porting the boundary fence erected
,Aereon. Shortly after Peck & Co. ac-
sHired the property they caused an ar
tesian well TO be bored thereon. When
water was struck, those in immediate
charge of the work made q cut across
the bank referred to so as to permit
the water from the artesIan well TO
Cow 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 1t filled in more than once,
but each time it was again opened by
the well-borers. Complainant then
drought suit, praying that the reopen
ing or maintenance of the cut be re-
strained by injunction and also for re-
lief on 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,
on the contrary, have been in the
direction of maintaining the bank in
tact so as to prevent any overflow from
complainant's land westward over said
bank in times of freshets. He Is con-
WINGED 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 TO move for the same here
after upon showing good cause there
for.
With regard to the right of respond
ents to eXcavate up 10 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
ents adjacent land in its natural state
and that equity will enjoin any de-
struction Of such lateral support. This
is right which exists by natural law.
independently Of grant or prescription.
A decree against the respondent cor
poration for relief from the destruc-
ton of lateral support will therefore
be signed on presentation.
Coming to the third question in
volved the full and free enjoyment OF
an easement in a 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
fered 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, II seems
TO the Court, does not arise properly
in this case, nor does the question OF
whether or not Peck 4 Co, are on
titled 10 have the waters of the
springs, II such there are on their
land, flow on TO Complalnants land
over the surface In case such an over
flow results from the closing of tho
new ditch,
A decree will be signed in accordance
with the foregoing views,