The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-11-25
INJUNCTION
DISSOLVED
Two ReversaIs by
the Supreme
Court.
WAlLUKU WATER
CASE SETTLED
Error of Circuit Court in Luning
Case-Damage for False
Arrest Asked.

The Supreme Court in q unanimous
decision handed down Saturday revers-
ed the First Circuit Court in the case
of Waikiki Sugar Co. VS.. Hawaiian
Commercial & Sugar Company dis
solving the injunction issued in the
lower court.
The plaintiff in this case had the
right to take water from the Waikiki
stream, Island of Maui, and the right
to have the water flow freely. The de-
PENDANT constructed a wall of stone
in the bed of the river, obstructing the
flow of water, but which was swept
away by a freshet and the court there
upon granted an injunction restraining
respondent from rebuilding the wall.
The Supreme Court in reversing the
lower court says: AT best, the COM
plainant may ask for an order restrain
ing only the erection of such structures
or the making of such deposits of earth,
as Will obstruct the flow of water in
the stream to the detriment of COM
plainant."
Continuing, Justice Perry, who writes
the decision. says:
Two causes of complaint are relied on.
One is that the respondent erected a GER
tain wall of stone and other material
across the north branch of the stream
The wall. as appears from the evidence,
was in fact so constructed; but the evi-
dehce also shows. clearly, and it is I'M
disputed that shortly after its erection
and before this suit was brought. a
freshet or freshets destroyed the wall
and washed away most OF the material
OF which ii was composed, without there
by causing injury whatever to the COM
plainant in it's bitches or otherwise and
further that the respondent does not
threaten or intend to rebuild the wall
or to build any oIher wall similarly sit
uated across the stream. On this branch
of the case no reason exists for an in
junction.
The other cause of complaint is that
the respondent has deposited on one side
of the stream and parallel with the bank
large quantities of stone, earth and 9th
er debris from a tunnel which is be-
ing excavated. and that such deposits.
as they are now, obstruct the flow Of
water, and, if washed away by freShets,
will further obstruct such flow not only
in the main stream, but also in the COM
plainant's bitches leading therefrom- The
deposit thus complained of was, at the
date OF Inc ITldi DGlOW, dDOuL twenty ltSl
in width at its widest part, and about
one hundred and twenty feet long. 1t
seems to us that upon the evidence the
finding is irresistible that this deposit
does not obstruct the ordinary and ac-
customed flow of water in the stream
or the supply thereof to which the COM
plainant is entitled in its bitches. 1t is
contended. however, that the material
so deposited will be washed away from
its present location by the first freShet
to which the stream may be subject. and
that in such event the stream and more
particularly the complainants supply
bitches. viii receive large Quantities Of
the debris and that thus the flow of
water will be interrupted to the COM
planaut's detriment. 1t may be that the
first or a later freshet VIII wash away
the whole or part of the material re-
ferred TO- but. in view of the effective
ness with which the wall across the
north branch is shown to have been ear
ried down the stream without causing
anv choking of-the same or OF the
bitches or otherwise injuring the COM
pIainant. the finding would moi, on the
evidence now before us, be justified that
there would be any choking OF the
bitches in case such material were
washed away. In order to justify an in
junction the danger apprehended and
sought to be guarded against must be
real and rest upon a substantial basis.
The contention is also present that the
maintenance of the debris in irs present
location will cause the direction of the
current of the stream to change 60 some
extent and the waters thereof to en-
croach on the compliments land on the
other side of the stream This Is no
established by the evidence.
In our opinion the decree appealed
from should be reversed and the bill dis
missed
KINNEY. BALLOU & MCLANAHAN,
For Complainant.
a 6. HARTWELL.
For Respondent.