The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-05-07

representing those lands, have no ripbt ~
stantially the original and accustomed co.,. OFT il
ditch In times of drought, the dam and A., at ae
the same condition substantially as in Tina, mus
must suffer accordingly And this accord, ~, Pele
See Peck y Bailey, Haw. 672, GA n, Aaaa
Allen said With reference to three auwsis vs; v
the Wailuku stream on Maui, ''Kalananw. l 4
the mill water course are entitled to al a. -'@lal
flowed in them from time immemoraI .,,' s
there is drought, and the water is dim;r;a
river, these auwais will lose pro rata Tbo
Kalaniauwai have right to divert tho ,r..
that the Kamaauwai and the mill water o. Aa
their usual flow. The original nn,,. w
courses was to supply kalo patches and the pteot;,
hiki must have been to give all the kao land.
rights of water at all times when needed KJ.
priority of supply over Kamaauwai and tba MI,
because it was situated above them on the stream
has Kamaauwai superior rights to the mill uo+o.
same reason but all are entitled to their nsuol a.
1t is urged that the complainants contention u.0
to the rights at the Paaluhi dam cannot ba ,n...
enforcement Oh decree III thelr favor would not l
1t is true that no accurate measurement of the on,
portion of the water flowing in Ditch B or in ts !
the dam has ever been made, and it is evident tb..
and proportions vary at different times according o
in the stream above the dam; but we see no mbs,
sibility In continuing to do that which for great
native Hawaiians have done, to wit maintain tba n
ditch in substantially the same condition as bav
uary last and In the time prior thereto 1t is better
existing rights as far as possible and substantially tn
ingy alter them materially or to destroy some Of Them
The respondents bill of costs, amounting in al h
and allowed by the Circuit Judge, contains an item /
dissolving injunction, $4,000" In support Of As !
affidavit was filed showing as we construe it that NJ
had paid their counsel the sum of $4,000 as retls
services in the case generally, and not especially fa
dissolution of the temporary injunction The dese
the complainants to pay all the costs taxed $1OA
item was allowed, as seems to have been the case sn
disbursement or attorneys fees" under Section IN
Civil Laws, then it was so allowed enormously. 81
a. Vincent 10 Haw. 237. If, however, the order Esh
an assessment and award under the bond filed by @np
damages suffered by the respondents in consequence
ance of the temporary injunction, the law appnshA
this: counsel fees paid to obtain dissolution Of hs
order itself and irrespective of the main suit are %
and proximately resulting from the issuance Of h1E
and are recoverable just as much as other costs q
damages to which the party might be put BY ran
restraining order See g Sutherland, Damages Eh
High ON Injamctions, 1856 ct seq; Is Am h&
Lao, End ed, 4e7, 46s.
On the question of whether or not such damage
assessed and awarded in equity, the authorities are
but we believe the better rule to be that they may
compliments and principals the bond are concerns
within the sound discretion of the court as to Vh
in each particular case it will itself dispose OF G
leave the parties to an action at law. See f'SS''
los, U. S. 433, AS, 446; Coosa0 Mn. Co. D. fD@
Co. ct al, 81 Fed. 10Y.
The decree appealed from is reversed and the cAS
to the Circuit Judge of the First Judicial Clrcn'
tons to ascertain the amount of damage suneru
plainants in consequence of the respondents "lOs
to enter decree in accordance with his tndlng' Wv
conformity with the foregoing views
Peterson Matthepman and ". o. Sm''
plainants.
Robertson 6 Wilder for the respondents
SEASON WATERS here such as they they y