The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1903-12-23

Whenever Il Is found that owing to
the physical features and character oS
this State and the pecularities of its
climate, soil and productions. the appli-
cation of a given common law rule
tends constantly to cause injustice
and wrong, rather than Justice and
right, then the fundamental principles
Of right and justice on which that law
is founded ard which its administra-
ton is intended to promote require that
a different rule should be adopted, one
which is calculated to secure persons
i'm their property and possessions and
to preserve for them the fruits of their
labors and expenditures. The question
whether or not the rule cOnteIIu~u 49,.
is a part Of the common law applica-
| bic to this State depends on whether it
is suitable to our conditions under the
rule just stated. It is necessary, there
fore, to state the conditions existing i'm
many parts of this State which are diff
ferent from those existing where the
rule had its origin.
The Court then noirt~ out the fact
! that in a large part Of this State, par
! ticuarly south of the Tehachapi range,
there is practically no production by
agriculture except by means of arti-
| fetal irrigation.
DISCUSSES DEVELOPMENT.
A discussion of the gradual develop
ment of irrigation system on scientific
| principles follows and the Court then
points out that the quantity of perco-
Hating water is never large, and that it
usually is found in some of the an
Cient canyons or lake basins beneath
! the ground, surrounded by high noun
tains upon which there falls the more
abundant rain. "Outside of these cam
yons and basins there is no percolat-
ing water in sufficient quantity to be
Iof much importance in the develop
ment of the country, or of sufficient
value to cause serious litigation. 1t is
usual to speak of the extraction of this
water from the ground as a develop
ment of hitherto unused supply. But
| 1T is not vet demonstrated that the
process is not in fact. for the most
part, an exhaustion of the underground
sources from which the surface streams
and other supplies previously used
have been fed and supported. In some
cases this has been proved by the
event The danger of exhaustion in
this way threatens surface streams as
well as underground percolations and
reservoirs"
The Court disposes of the contention
that the doctrine stated by Justice
Temple is contrary to all decision by
pointing out that the decisions have
not been harmonious, and further
that what has been said on the sub
ject is in MAN. cases mere dictum.
RIGHTS OF ADJOINING OWNERS.
AS a result of this discussion of the
authorities the Court finally con-
cludes:
1t cannot be successful claimed that
the doctrine of absolute ownership is
iWell established in this State. 1t is
proper to state that in all the opinions
which have so readily approved the
supposed common law rule that in
ijuries from interference with percolat-
ling waters We're too obscure in origin
land cause, too trifling in extent, and
relatively too little Importance as COM
Ipared to mining industries, and the
wants of large cities, to justify or re-
Iquire the recognition by the courts of
any cOrrelative rights in such waters,
or the redress of such injuries. 1t is al
so to be observed that in some in
stances in the Eastern States. men,
toned in the former opinion in this
case, the injustice from the diversion
Iof percolating waters has been so dar-
ing and so extensive that the Court
there was compelled to depart from it's
previously decided cases and recognize
the rights of adjoining owners.
The Court points out the fact that
if the contention of those who are
Opposing the former decision of the
Court be correct, and the persons who
own the land are entitled to drain Off
all the water or the oil from beneath
it, then it may only be a question of
time when some more powerful persons
Ior corporations may, in like manner,
sink wells for oil or water on land ad-
Joining that held by these contestants
and so deprive them of their oil or wa
ter, as the case may be.
SOLUTION OF THE DIFFICULTY.
As solution of the difficulties which
the Court frankly admits the sugges-
ton IS made that the doctrine of rea-
sonable use may afford some measure
of protection to property now existing.
This doctrine limits the rights of others
to such amount of water as may be
necessary for some useful purpose in
connection with the land from which it
is taken.
In controversies between an appro-
priator for use on distant land and
those who own land everything the wa
ter-bearing strata there may be two
classes of such andowners-those who
have used the water on their land be-
fore the attempt to appropriate, and
, those who have not previously used it
but who claimed the right afterwards
to DO So Under the decision in this
case the right of the first class of land.
, owrers are paramount to those of one
who takes the water to distant land
but the landowners right extends only
! to the quantity of water that is neces.
sary for use. on his land, and the ap.
, proprietor may take the surplus AS t.
IhgNEn ln 4 ~
, after the appropriation, and who in or
) der to obtain the water, must restric
or restrain the diversion to distan
, lands or places, it is perhaps, best no
to state a positive rule.
The opinion of the Court closes wild
! statement of some general rule
/. which should be applied in cases lik
, that at bar.
f CANNOT PLAY DOG IN NfANGER
5 The Court recommends that pre-
1 liminary injunctions, if granted at all
shall 10 he ,Ia