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

W AiN''" w ~ - A'"i'' - Wv us
the physical features ana character on
TINS state ana the pecularltles OF It's
climate, soil ana productions, the appli-
cation or a given common law RUE
tends constantly to cause injustice
ana wrong, rather than justice ana
right, then the fundamental principles
of right and justice on which that law
is founded and which its administra-
ton Is intended to promote require that
a different rule should be adopted, one
which is calculated to secure persons
in their property and possessions and
to preserve for them the fruits of their
labors and expenditures. The question
whether or not the rule CoheeIiuoU 49,.
IS a part of the common law appltca-
Die to this state depends on whether it
is suitable to our conditions under the
rule Just stated. 1t is necessary there
lore, TO state the conditions existing in
many parts OF this state which are diff
terent from those existing where the
rule had its origin.
Inc Court then nof0'~ out the fact
that in a large part of this state, par
ucularly south of the Tehachapi range,
there is practically no production by
agriculture except by means of arti-
fetal Irrigation.
DISCUSSES DEVELOPMENT.
discussion of the gradual davelon-
ment of irrigation system on scientific
InrincipIes fol1ovs ana tho Court tben
points ont nat +be ouantitv of narco-
lating water is never large. and that it
usually is found in some of the an
Gent canyons or lake basins beneath
! the ground, surrounded by high noun
talns upon which there falls the more
ABUNDANT ram. outside or these cam
yons and basins there is no percolat-
| ing water IN suifcient quantity to be
Iot much Importance In the develop
ment or the country, or OF sufhcient
value to cause serious litigation. 1t is
uSual 20 speak OF the extraction OF TINS
water from the ground as a develop
ment OF a hitherto unused supply. But
| 1t Is not yet demonstrated that the
process IS not in fact. for the most
part an exhaustion OF the Underground
sources from when the surface streams
ana other supplles previously used
nave been fed and supported. In some
cases TINS mas been proved by the
event The danger of exhaustion in
TINS way threatens surface streams as
well as underground percolations and
reservoirs
! Inc Court disDoses 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 many cases mere dictum.
| RIGHTS OF ADJOINING OWNERS.
As q result of +bis ,1iso,ssio,, &c ,+,,o
artbo,.itfas tho C,I,,,.+ al,
c1udas.
II cannot he srcceesf,,1 o1,i,,a,7 +bo+
line dortrire Of ahsoI,ita ot,.,,i,,r T.,
we'll estahIfsbad IN ttis CO. ~ 10
which have ca reodiI,, a,on,,oI,nl ti,o
supposed common law rule that in
luries from interference with percolat-
ing waters were too obscure in origin
lahd cause, too trit1ing in extent, and
relatively too little Importance as COM
pared to mining industries. and the
wants of large cities, to justify or re-
Iqulre 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 i'm some in
stances IN the Eastern states, men
u"heu IN the former opinion in this
case the injustice from the diversion
Tor percolatlng waters has been so dar-
ing ana so extensive that the Court
there was compelled to depart from its
previously decided cases and recognize
Ifhe rights OF adjoining owners.
Inc Court points out the fact that
II the contention OF those who are
opposing the former decision of the
court De correct, and the persons who
own the Iand are entitled to drain Off
AN the water or the oil from beneath
IT, then 1t may only be a question of
time when some more powerful persons
or corporations may, in like manner,
SINK wells FOR oil or water on land adj
joining that held by these contestants
ana so deprive them of their oil or wa
ter as the case may be.
SOLUTION OF THE DIFFICULTY.
Asa solution ne tho diaso,,,+i,,, ,,.,,i,t,
1.-The Court frankly adr1its tta s,,or.as'
tion Sc mad that 49, SSo,+,ir, 9u se Go
sonabIe uso NAV afford son1n ,,,ao s,,,,a.
of nrotectio,, ~ ,,o,a,t, ,l,l,. ,.istil
This doctrine limits the rights of others
to such amount of water as may be