The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-05-26
IN THE SUPREME COURT OF THE HAWAIIAN
ISLANDS.
MARCH TERM 1900.

APPEAL ON POINTS LAW DISTRICT MAGISTRATE OF
KoLoA, KAUAI
SUBMITTED NJ ARCH 10, 1900. DECIDED MAY II, l9oo
FREAR AND WHITING JJ CIRCUIT JUDGE PERRY IN PLACE
JUDD CD. ABSENT
title to an e,semepta water rights a
the meaning of Section 119 which pro-
e that cognance of real actions
nor actions shall in question
plea of title sufficient affidavit
Court of March 1st 1885, Gusts the
Jurisdiction in actions involving title to real
estate, the production of evidence
OPINION OF THE COURT BY WHITING. J.
damages against defendant for trepass in unlaw-
fully shutting off the water from the Kooa stream flowing to
Hanakaape December &C. $685. and January 1892 the
plaintiff claiming the right to the water
Defendant in denies that the plaintiff entitled to
for premises mentioned in the complaint heren has
any had the right water from the stream
running said premises and denies that plaintiff has ever
been deprived by the defendant of his right water has been
damaged by the defendant in whatever This answer
On November II, 1892 the district magistrate
ruled this and affidavit that not sufficient Dust
the courts jurisdiction the ground that proper affidavit had
been made This ruling probably based Supreme Court
Rule Order of 1st "Order Courts
1t hereby ordered that whenever in the district courts de-
Tense of action of espa for the summary posses
sion of land other action the defendant shall plead the
jurisdiction in effect that the suit real action, which
the title to real is involved such plea shall be received
by the court unless accompanied by affidavit of the defendant
his attorney setting forth the source extent of the
title claimed by defendant the land in question: and such fur
Their particulars will fully appre the of the
defendants claim
The then o'clock a. m November o.
1890, which date defendant filed plea to the jurisdiction
viz, That the district of the Republic of Hawaii have
jurisdiction Sec. 49, Civ L. of real actions actions
which the title real shall question: Together
with the plea the affidavit of A. Cropp manager
corporation was filed setting out: 1st That the land alleged
belong the plaintiff kua land not now and never has
been entitled to water 3D. That since the year
abouts the defendant and predecessors have had the exclusive
Sundays and that during all of that period has been stored
by the defendant such by reason of such x
elusive of said aforesaid the defendant has lone since
obtained prescptve right the same and that on
the days set forth in the plaintiffs complaint Christmas av and
New Years day 1898 and 1899, defendant caused said
TO be stored pursuant to It's prescrpve rights 3d. That
the water stored aforesaid purchased by the defendant
from Geo. Wilcox and but for such purchased afore-
SAID there would have been running in said stream and
that at said times mentioned said complaint the whole island
OF KAUAI was suffering from drout there was little
or no water IN of the this island h That te
defendant the of large land abune upon said
stream and such entitled the the water in said
stream and the said wafer if necessary for + ~
use upon its abuaing lands r.
lhe district magistrate sustained this plea and dismissed the
case he plaintiff by Mkaee his attorney gave notice of appeal
on points OF law immediately
First Point of Law That said DISTRICT ..
ue1edantS second plea jurisdiction upon affidavit
d "G Tor the reason that said plea wrongly re-
cted mat sad affidavit wrongly received. tbo+ cold d
VT was insufficient in substance and was incorro+ ~ -; f
mdehnlte uncertan without merit and was for the sole and
IN pp o causing tins plaintiff wowy delay and expense
III prosecuting this action and argumentatve: and f,bor
aer pantf couse had Friday, November ~ 1900
i; f e question OF jurisdiction argued and settled
1, 81 Sau pamRf, submitted the court an ORIGINAL
' when the court received and examined to water for h
p IN controversy upon the days laid in plaintiffs com
pant MADE by the commissioner of ways and water for the dis
t1ct OF hooa in 1873 and signed by him " ~
Was the second plea and affidavit sufficient ,1 ,
- above stated, to the district mao
I'm refusing to take Jursdcton In Ward KamannoH1
aT' ~ IN an action of respass qnare cla,sun fgit b
court held that plea of title in defendant without 49, @
b was sufficient to Gust the district magistrate of
MS jurisdiction there being no statute or rno roo,; 49,
remedy might have to be provided was thought of in
:s Were the court remark in Coney Manele Taw 157
81 uiS9he pleas should be up by defendants undonI1
eecual means will be found obvae the effects Of @ di
- rule will be made to apply future cases. This
S was ueced Pebruay 25 1895, and March l. 1895 the
supreme court Rule Order to the district manra+os ~
made. 0' magistrates was
IN January 1898 the of Kaneohe Ranch Co. = Al On
liaw 2'5, was decided, being an action Of uorc c1a
Iregf 1t was begun in the district court and the defend