The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-02-20
As
TO WATER
TheSupremeCourt
Passes on Old
Suit.

decision setting aside the judgment of
the lower court in the case of Hawaii
an Commercial and Sugar Co. VS.. Wal
luku Sugar Company, decided numer-
Gus questions of interest to plantation
men generally, relating TO water rights.
The opinion is written by Chief Justice
Frear. The case involved the water
rights to the Wailuku stream. the de-
PENDANT having constructed a dam at
Manienie, which, it was claimed by
plaintiffs diverted the stream so as to
deprive them OF water to which they
were entitled. The case has already
been before the Supreme Court, ana II
was previously decided that the defend
ant had a right 20 construct the dam,
though there was no ruling as to the
question OF diversion of water to which
defendant was not entitled. The court
says 1.-The main question was whether
the ancient method of diversion eStab-
lished by prescription had been chang
ed by prescription The
prescriptive day right might cover all
the water in the stream in dry times,
but that would be, not because it COW
cred all the water. however much
there nut DcCduSc II CIV
a certain amount. and there was not
more than that amount in such times.
The court further holds that the for
mer decision was based on the ground
that the exercise of the defendants
right by day could not diminish the
plaintiffs supply by night"
In conclusion the court says:
We will assume that the matters for
merly decided are the same so far
they go the matters now in dispute
as. for instance, that the dams and
fumes are the same in the two cases.
Then as shown above it is res judicata
that the dam was lawfully constructed
and maintained by the defendant, but not
that the defendant can take water
whether prescriptive or surplus, from
above the dam to lands, whether kula
or kalo. that have prescrptive right
to water from that point. 1t is res judi
cata that the tapping of kalaniauwai by
means of a hume and the taking of wa
ter thereby to the kula lands to which il
was formerly taken by the defendant is
lawful, provided it still desists from us
ing a sufficient quantity of water on its
other lands then uncultivated but having
prescriptive water rights. but not that
it can lawfully so take more water Ell
Their surplus or prescriptive. than for
merry even the former amount f il
has resumed the use of water on such
other lands or even additional water in
lieu of using water on other lands hav-
ing prescriptiye rights. whether since ac-
Quired or then owned and not included in
those then owned and uncultivated. 1t is
res judicata that alleged 126 acres and
more of kalo lands belonging to the
plaintiff in the lower part of the valley
are not entitled to continuous flow OF
water, and that the defendant has the
exclusive right, subject to the exceptions
| mentioned in the former decision, to the
Il. no
amount to which its former estate was
entitled by prescription even though that
was at times all the water in the stream.
1t is not res judcata that the defendant
is entitled by prescription, subject to the
above mentioned exceptions, to all the
water, however much there might be-
in the stream during the times above
mentioned or that the defendant is en-
titled to a proportional share or any
share of the surplus or Sunday water
or that it is not so entitled.
1t follows that the former decision $
not a complete bar to the present suit
and does not cover completely the several
acts now complained of in bar to which
that decision is pleaded 1t Inay be re
lied on far as ii goes but beyond that
the questions are still open.
The decree sustaining the plea Is SET
aside and the case RENTED 10 the CIR
cult Judge for further proceedings
The following is the syllabus of the
opinion:
A decree is binding between co-defend-
ants when they are adversary to each
other, and when their rights as against
each other are adjudicated, whether there
are cross-pleadings between them or not
if the matters could be adjudicated IN
der the pleadings between the plaintiffs
and defendants.
One who appears generally and is made
a party at his own request is bound by
the decree so far as it properly goes
under the pleadings, even though he APP
peared in consequence of a published
notice which was not so broad as the
complaint.
The doctrine of splitting causes dis
| tinguished from that OF res judicata.
So far as the ultimate matter adjudiea-
ted is concerned, all intermediate mat
tiers are conclusively presumed TO have
been aGjudcated whether in fact raised
or adjudicated or not.
AS to other ultimate matters. only
those informed ate matters are regarded
as adjudicated which were in fact ao-
Indicated.
Other ultimate matters themselves are
not regarded "a adjudicated if they were
not in fact adjudicated although they
might have been 50 far as the pleadlngS
were concerned.
A decree IS binding As TO necessary in
ferences though not a. 10 possible or
probable differences from il.
Under a complaint that the defendant
unlawfully constructed and ma ntained a
dam and by means thereof diverted va
ter, a decision that the dam need not pe
I, removed because il might be Lawfully
used for diversion TO certain land, and
does not appear to be used for q diver
sion to any land. does not settle that j.
might lawfully be used Tor diversion
to other lands.
Nor does a decision that a certain
quantity of water lawfully be diverted
at other dams settle that the same or
any less quantity may lawfully he di-
verted at this dam.
decision that certain quantity OF
water may be taken from an ancient
ditch by means of new fume 20 lands
that have no water rights because OF
discontinuance in the use of a certain
other quantity of water on other lands
thar have water rights does not settle
that an additional quantity may after
wards be so taken at the same point.
or oven the same quantity Il the use OF