Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1904-06-03
WIN WATER INJUNCTION.
HAWAIIAN COMMERCIAL co.
GAINS FROM WAILUKU
LAW WHICH IMPOSES HARDSHIP
UPON SMALLER CORPORA.
TioNs BUT NOT UPON
BIG CONCERNS.

Supreme Court yesterday afternoon
rendered unanimous decision in the
lao valley water rights controversy be-
tween the Hawaiian Commercial and
Sugar Co. and the Waikiki Sugar Co..
granting, with reservations. the In
junction asked by the Commercial peo-
pie to restrain the Waikiki Co. from
continuing certain illegal diversions Of
water.
Associate Justice Perry writes the
opinion. The syllabus says:
The surplus water OF an ahupuaa,
meaning thereby the water, whether
storm water or not, that is not COW
cred by prescriptive or riparian rights,
Is the property Of the konohiki, to do
with as he pleases. and is not appur-
tenant to any particular portion OF the
ahupuaa.
No part Of such surplus water passes
as an appurtenance under deed Of q
portion of the ahupuaa not bordering
on any stream nor having any streams
or springs within 1t.
BY the judgment in the case of Lono-
aea vs.. Wailuhu Sugar Company. y
Haw. 65l, 665. 666. all Of the prescrip
tive rights to water then owned by the
respondent were adjudicated and
awarded to IL.
by the term ats present estate"
used in that Judgment, was meant only
the 9Si acres of respondents land then
In cane or which had been heretofore
planted In cane, and not all OF the
available cane land then owned by the
respondent.
By that Judgment the respondent was
not awarded all the water in the Wal
luku- stream during the day irrespective
OF the quantity In the stream.
That Judgment excluded night water
and Sunday day water as not belonging
to the respondent by prescription.
| With reference to water which had
been used adversely for less than the
statutory period, the institution of pro-
ceedings and the judgment in the Lo-
hoaea case interrupted the running Of
the statute, and the period OF prescrip-
ton would have to commence anew
thereafter. The adverse user had be-
fore the judgment cannot be tackled on
to that, II any, had after that time 50
as to ripen into title.
The judgment In the Lonoaea case
awarded to the respondent the water
for its present estate from these au-
wais" (meaning the various large au-
wais then leading from the Wailuku
rIver) ION each day of the week, eX-
cepting Sunday, from 4 o'clock a. m.
to o'clock y. m, the dams to be kept
substantially as they are at present,
composed OF loose stones and dirt"
THE water for its present estate" thus
awarded means the water needed, with
out waste, for the 9Si acres. constitut-
lug the respondents estate at the time
of the institution OF that suit. II culti-
waited In cane. limited, however. to the
quantity flowing in the auwais as they
were at that time and diverted by the
dams kept substantially, as 10 height.
composition and otherwise. as they
then were, and limited further TO the
days and to the hours named In the
Judgment. This may include the water
Of freshets, small or large, provided It
Is thus needed and only TO the extent
that II is thus needed and always with
the limitations mentioned as to time OF
taking and capacity, ETC., of dams and
bitches.
1t does not necessarily follow from
the mere fact of a discontinuance OF ir-
rigation OF land to which water rights
are appurtenant, that the right to the
water is abandoned. Whether or no,
there has been such abandonment Is
a question OF intent. to be determined
upon all the evidence.
Under the Judgment above quoted
the respondent was awarded water fol
the purposes OF its sugar mill
The water flowing from tunnel dur
y by the respondent on its estate sine,
. the date Of the Lonoaea judgment |,
. now owned by the respondent in add
:, ton to the water to which It is entitle,
k under that judgment.
Water may be diverted from land
: entitled thereto to other lands, provid
ed such diversion can be accomplished
and to the extent only that II can b.
accomplished without injury to tn
n rights Of others.
Where an attempt Is made to 81
divert water, the burden Is upon tn
- party making such attempt to prov
n that the diversion Is without injury I
~ the rights of others; and II the proc
Is is not such as to satisfy the court Q
10 the harmlessness Of such diversion, tn
IL diversion will be enjoined.
n The rights OF the Waikiki Suga
c. Company In the waters OF the Wailuk
OF stream declared and an injunction oil
to dered to issue restraining It from cor
OF tinuing certain illegal diversions {
water shown % have been committe
a by II.
ne Injunction restraints responder
he from Ayerting water from Wailuk
nd stream on Sundays between a. m. an
ng p. m. or on any other day betwee