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

DISSENTING OPINION
respectfully dissent The words &c pill ana mean "on
ing, coincding' uniting With and the equiv
aent of the word "aong" The word kahawa although
may eymologcaly water-na and may be used to
note dry guleh in which there formerly stream
doubtedy used here the of Stream The md
airy would then, be described ranslating as: "Sout $50
West 122 chains along the stream
1t true, the words pill used in describing the
other boundaries being along adjoining lands and of course
would not carry title to the center of those lands does
follow that they would carry title the
The word along and other equivalent words are construed
with similar difference of meaning according they used
connection with adjoining lands with streams
for the rule founded the supposed intention of parties
and could reasonably be supposed that there nten
ton to convey to the center of adjoining land
owned by the granor while might reasonably be supposed
that there intention convey the of
when the grantor owned to the center
The diagram the face of the Award entitled compar
aively little weight 1t ought control the language
OF the Award The strip shown between the kueana and the
stream very narrow, and the diagram evidently does pre-
tend to give the boundary of the stream accurately.
1t Is true also that the specified and distances do
the boundary to the of the But such is
usually the for rule do into the mid
die of They survey the land portion of tract that
extends into stream This has often been recognized by
Federal and State Supreme Courts.
The real question: me- whether the and
distances should be held control the monument the
stream What should hold in this if this question
entirely need say that the rule
well settled for determination Where land bounded
a1ong stream, goes the though the courses
and distances would take there Schuyler a. Phoenr ms
Co., 134 N. Z 1885, Kent a. Taylor, 81 n H. 4S9; Lampnan
o. Van Atstgne 81 Wis AT. See generally Gould Waters
Secs 194, 1877 Jones, r. P Secs 490493; Devin Deeds
Secs 1924, 1925 The general rules construction in cases
involving questions of this kind have been recognized by this
court. Motley KubaaH Plantation Co., Haw 525 To
depart for light from those rules, which have almost be-
rules of property would tend bring uncertainty
law of real property.
But after all does it make any difference whether the title
goes the the of the stream that is whether
the boundary along the literally speaking or along the
center of the stream legally peakng It certainly along the
stream, along the bank The the bank or
any other form Of land is the boundary Even we give the
words &c pill ana the effect in adjoining
lands and give the and distances full effect still
boundary would be least the edge Of tie stream If the edge
of the stream the edge of the bank boundary the
boundary will with the and if the dmnhes in
width owing diminuon in the quantity of water which has
probably been the here If gradually changes course
the boundary changes with it according well rules of
law. So it really makes difference far this
cerned whether the boundary the edge of the stream
center of the The stream natural
clearly mentioned such IN the words of this Award I
see that sufficient appears Justify in dsregardng it.
understand that the Circuit Judge opinion that
the land went to of the but that refused
injunction the ground that the injury caused by tie tunnel
to the plaintiff land would be small to justify the granting
of the injunction need express opinion upon this latter
point Of the opinion Of the majority upon the question
of boundary.