The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-09-11


This bill IN equity for injunction to restrain the re-
mdent from digging tunnel under through or across certain
and situate at Waikiki, Maui of which the complainant ia
LEGGED to be the
1t undsputed IN this that the complainant is the owner
1.-THE land described in Land Commission Award 1891 Apana
issued Opunu, and situate said Wailuk1 One of the
is this Kueana is described in the Award as running
Hma 36o Ko 122 Kh pill me Kalawai' neaning the
eam) Complainant that by virtue of this ele
of the description the Award CONVEYS the title to the land
the thread of the stream while the claim of the
ndnt that the bed of the as covered at high water
times of freshets included the grant It is clearly
the evidence adduced at the trial below that the tunnel
under the bed of the exists high water or in
of feshets and outside of the boundaries the Kueana
the and distances alone followed locating
uRdas and only by adopting rule commended for by
he companant o that where of conveyance
scrbes land being bounded by "along" stream the
grantee thereby obtains title far the thread the
that the tunnel held be on under the com
claimants land
The rule referred to best of construction only
Devin Deeds Sec 1925. It rule of law although
courts would regard Judging from expressions
used the decisions and from the which appca
n has been carried Two usually assigned for the
% of which that great majority of by adop
@ the intention of the grantor will be efectuated The
nd of policy is thus stated by Redield j. in Buck o.
qrs, % Vt Asa cts chief object prevent
nee of nnumerabe strips and cores of land along the margins
streams and highways which the title generations shall
nan in abeyance and them upon the happening some
eced event. and consequently in express pro-
ded for In the title deeds, bootless, almost objece tga
Ion shall spring up and harass those who good faith
supposed themselves from such embarrassment
rtlnncc
policy that who land the centre of
ve of the whole stream convey another the portion
such land extending to the bank only and exclusive of the
A OF the stream T is equally competent for the riparian
etor sell his upland the top edge of the bank of
er and the stream flats below high water mark
he does it by clear and specific boundaries He may
convey the bed of separate from the lands which
"und % Kens Conn., p. 485 See also Paine o. Storage
no. Il Fed $780, Hatch Dacight II Mass 28S, 289; and
Sudford Cressey, 35 Ne. Is.
Further the rule as stated by practically all the authorities
subject the limitation that the presumption that the grantor
blended convey the thread of the stream prd dcc
My and may be rebuttedn other words, that it clearly
r from the language of the from any map
plat made part thereof or perhaps from other crcum
c, that was the intent of the grantor convey only
and including the bed of the stream the deed will be
construed carry out that intent.
assuming, them but deciding that the presumption here
oe referred such cases. there sufficient IN the
ence in this particular to rebut 1t! We are OF the
on that there is The word 'Kahawa means not only the
stream but also the bed channel of the stream lnclud
The portion of such channel covered only IN tunes OF hh
' or of freshets 'E pill ana adjoining and the
these words indicates that the object referred to as beng
led IS excluded The expression, e PHI ana, used
every of the in the description referring
Instance pieces of land which, clearly it was intended to
e We believe that in the call under consideration the
W We're employed the and that they show an
' to exclude the Kahawa" Further, the testimony shows
egaring the bed of the excluded and following
and distances given the description closes and is con-
with itself and that the Shape of the Kueana and the rel
IN It's description adjoining pieces, such that an
point for the survey elsewhere than the side towards
am can be and has been definitely located the ground
me starting point thus determined and the courses ana
s being followed the line on the side question adjoins
81 1lodes the channel of the stream
agram of which copy is here inserted, contained IN