The Hawaiian gazette., 1902-02-21
DECIDES AS
TO WATER
TheSuprsmeCourt
Passes on Old
Suit.
orrom Thursdays Dany)

luku Sugar Company, decided numer-
Gus questions of interest To- plantation
men generally. relating to water rights.
The opinion !. written by thief justice
Frear The case involved the water
rights 20 the wailuku stream, the de-
fendant having constructed dam az
Manienie, which, IL was claimed by
plaintiffs. diverted the stream so as 20
deprive them OF water 10 which they
we're entitled The case has already
been before the Supreme Court, and IL
Was previously decided that the defend
ant had a right 10 construct the dam,
though there was no ruling az To the
question of diversion Of water to which
defendant was not entitled. The court
says, The main question was whether
the ancient method of diversion estab-
lished by prescription had been chang
ed by prescription The
preserlptive day right might cover all
the water in the stream In dry times,
but that would be. not because II COW
cred all the water. however much
there might be. but because ii covered
a certain amount, and there was not
more than that amount in such times. q"
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 arc the same so far
they go as tho matters now In dispute
rs, for instance, that the dams and
fumes are the same In the two cases.
Then, as shown above. II IL res judicata
hot hA dan las "a frtt " tod
and maintained by the defendant. but not
that the defendant can take water
whether prescriptiYe or surplus from
above the dam 10 lands, whether kula
or kalo, that hayo no preScriptiye right
to water from that point. II Is res judi
cata that the tapping Of kalanIauwai by
means of a flume and the taking OF wa
ter thereby to the kula lands to which Il
WAS formerly taken by the defendant IL
lawful provided Il still desists from US
ing a sufficient quantity OF water on It's
other lands then uncultiyatcd but having
prescriptlve water rights, but not that
IL can lawfully 20 take more water eli
ther surplus or presCriptlve than for
merly or even the former amount 4 1t
has resumed tho use of water on such
other lands or even additional water in
lieu OF using water on other lands hay
ing prescriptive rights, whether since ac-
quired or then owned and not included in
those then owned and uncultvated. If is
res judiCata that alleged 1876 acres and
more OF kalo lands belonging to the
plaintiff In the lower part of the valley
are not entitled TO continuous now Of
water and that the defendant has the
exclusive right, subject to the exceptions
mentioned in the former decision TO the
day water, except on Sunday, UP to the
amount to which its former estate was
entitled by prescription even though that
At f,pa ha "a. N ha ~
II is not res judicata that the defendant
is entitled by prescription, subject to the
above mentioned exceptions to all IN"
water. however much there might be,
in the stream during the times above
mentioned or that the defendant is en-
titled to proportional share or any
share of the surplus or Sunday water.
or that II Is not 50 entitled.
Ii follows that the former decision -
not 4 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 may be re-
lied on as FAR as 1t goes but beyond that
the questions ara still open.
The decree sustaining the plea IL SET
aside and the ease remltted 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 ndjudicated, whether there
are cross -pleadings between them or not.
it the matters could be adjudicated un-
der the pead!nGs between the plaintiffs
and defendants.
one who appears generally and Is made
party at his own request is bound by
the decree so far as II properly goes
under the pleadngs, even though he ap-
peared in consequence OF published
notice which was not so broad as the
complaint.
The doctrine of splitting causes dis
tinguished from that of res judcata.
80 far as the ultimate matter adjudiCa-
ted is concerned. all intermediate mat
ters are conclusively presumed to have
been adjudcated whether in fact raised
or adjudcated or not.
As TO other ultimate matters, only
those informed ate matters gre regardtd d
as adjudicated which We're In fact ad-
judcated.
Other ultimate matters themselves are
not regarded as adjudicated IL they wer,
not in fact adjudicated although they
might have been SO far as the pleading,
were concerned.
A decree 10 binding as to necessary in
ferences though not as to possible ol
probable inferences from It,
Under a complaint that the defcndan
unlswfully constructed and maintained
dam and by means thereof diverted wa
ter decision that the dam need not b'
removed because it might be lawful!
used for diversion TO certain land an,
does not appear to be used for diver
sion TO any land. does not settle that /
might lawfully be used for diversion
TO other lands.
Nor does a decision that a certail
quantity OF water lawfully be dverte
at other dams settle that the same o
any less quantity may lawfully be di
verted at this dam.
A decision that certain quantity o
water may be taken from an ancien
ditch by means of new fume to land
that have no water rights because OF
siscontinuance in the use OF certai
other quantity of water on other land
taat have water rights. does not settl
that an additional quantity may after
wards be % taken at the same poin
or even the same quantity IL the use G
water on the old lands has been resumed
sr ~ additional quantity in lieu of US