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

A property owner i'm San Bernardno
county drove an artesian well. An adj
joining property owner then put down
we'll that stopped the flow from the
first well, whose owner then
brought an injunction suit to determine
the rights of contiguous owners. The
Court nOnsuited the plaintiff and JUS
tce Temple reversed the decision. A
rehealing was granted and the supreme
Court of California reafiirms the decl-
sion of Justice Temple. As a solution
the court suggests the doctrine of 'rea-
sonable use, limiting the use Of SUBJ
terranean water to the land from
which it is taken.
The conditions out of which the case
grew are such that it is possible TO
suppose they might happen in Hawaii
The history of the case and the feature
OF the decision are as follows
1t is known as the katz- Walkenshaw
suit. otherwise as the percolating
case" Leah j. Katz had an artesian
well on her place in San Bernardino
county Margaret ID. Walkenshaw,
who owned the adjoining property, al
SO sunk an artesian well. AS soon as
Mrs. Walkenshaw's well began to fur
nish an abundant supply that of Mrs.
Katz fell short of its usual flow. The
ladies resorted to the courts to secure
determination of the rights of con-
tiguous owner to subterranean waters.
The case assumed greater interest
because the oil men began to ask each
other if the man who first tapped a de-
post of petroleum owned the whole of
it. The mining men also began to
look on the contention as one that
might affect their industry. The case
was originally decided a little more
than a year ago. the opinion being
written by the late Justice Temple
few days before his death. A rehear-
ing was granted, and the result is an
affirmation of the original decision.
The Court, in it's opening sentence,
| refers to the great Importance of the
case, not only to the parties to the
action but because many persons 50
"vitally interested in the principle in
volved-a question that is novel and
of the very utmost Importance to the
| application to useful purposes of the
waters which may be found in the soil"
A large number of briefs were filed
on both sides of the case by attorneys
representing large owners of water
rights, particularly in the southern
| part of the State, though the doc
trines involved affect property owners
wherever artesian wells are sunk or
percolating waters are used or sold
THE FACTS IN THE CASE.
The facts in the case are very simple.
! The plaintiff and defendant owned
! neighboring tracts of land. Each sunk
on her own land artesian wells. The
! plaintiffs wells were sunk first and
She had enjoyed for some time the
flow of water from them. Later when
the defendant sank wells and made
! excavations on her tract of land, she
prevented the flow of water through
the plaintiffs wells; Ia --~-, -, .
the supply of percolating water from
plaintiff.
In the lover court the contention
! of plaintiff that the sub-suface water
constituted an underground stream,
and that they are riparian thereto and
| sought relief as riparian owner, was
met by defendants denial that she
was taking or diverting water from
an underground stream or water
course, but that she was only using
water rising in the artesian wells on
her premises and that the percolating
water was parcel of her premises and
her property. Thus, as the Supreme
Court says, while denying that she is
doing any act of which plaintiffs can
complain, she really only denies that
she is diverting water from an under
ground watercOurse, and asserts her
right to dispose of the water in a
manner alleged because it is percolat-
ing water, not confined to a definite
water course.
The lower Court sustained the con-
tention of the defendant and granted
her motion for non-suit. In the
original opinion in the case Judge
Temple argued that this judgment
should be reversed and a new trial or
dered. The Supreme Court has now
adopted unanimously this view after
considering Voluminous additional ar
guments upon the subject.
OWNS WATER IN HIS LAND.
The main argument in support of
the jurgment of the lower Court were
that each land owner owns absolutely
the perColating waters in his land,
with the right to extract sell and dis
pose of them as he chooses, regardless
of the result to his neighbor. The de-
cision then continues:
This theory, it is claimed, is part of
the common law and as such has been
adopted in this State as the law of the
land. And hence that it is beyond the
power of this Court to abrogate or
change it; that the rule has become a
faith of which enormous investments
have been made, and that it should not
now be departed from even if errone-
ous that even if the question was an
open one, the adoption of the doctrine
OF correlatiVe rights i'm percolating wa
ters would hinder or prevent all further
developments or use of underground
water and endanger or destroy devel-
opments already made, thus largely
, restricting the productive capacity anG
growth of the State, and that therefore
sound public policy and regard for the
general welfare demand the opposite
rule; that the doctrine of reasonable
use of percolating water requires ar
equitable distribution thereof among
the different land owners and claimants
who might have rights therein, this
} would throw upon the courts the duty
and burden of regulating the use OF
such waters and the flow of the well!
or tunnels and that this would prove
duty impossible of performance: anC