The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-06-03
WAILUKU WATER RIGHTS
CASE FINALLY DECIDED
Hawaiian Commercial & Sugar Co. Gains In
junction Over WaiIuku4Sugar Co.
In Supreme Court.


in that judgment, was meant only the
9S4 acres OF respondents land then In
cane or which had been theretofore
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-
noaea case interrupted the running of
the statute, and the period of pre-
scription would have to commence
anew thereafter. The adverse user had
before the Judgment, cannot be tackled
on to that, If any, had after that time
so 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-
was then leading from the Wailuku
river) ION each day of the week. ex-
cepting Sunday, from four o'clock a.
IN. to four o'clock p. M, the dams to
be kept substantially as they are at
present, composed of loose stones and
dirt" ''The water for it's present es-
tate" thus awarded means the water
needed, without waste. for the 1854
NJ ha aS-
tate at the time of the institution of
that suit, If cultivated in cane, linn
ited however, to the quantity flowing
in the auwais as they We're at that time
and diverted by the dams kept sub
stantially, as to height, composition
and otherwise, as they then We're, 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
it 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 n dscontinuance of
irrigation of land to which water rights
are appurtenant, that the right to the
water is abandoned. Whether or not
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 for
the purposes of it's sugar mill.
The water flowing from tunnel dug
by the respondent on it's estate since
the date Of the Lonoaea judgment is
now owned by the respondent in addi
ton to the water to which it is entitled
under that Judgment.
. Water may be diverted from lands
ed such diversion can be accomplished
and to the extent only that 1t can be
accomplished without injury to the
rights of others.
Where an attempt is made to so
divert water. the burden is upon the
party making such attempt to prove
that the diversion is without injury to
the rights of others; and If the proof
is not such as to satisfy the court of
the harmlessness of such diversion, the
diversion will be enjoinec,
The rights or the Waikiki Sugar
Company in the waters of the Wailuku
stream declared and an injunction or
dered to issue restraining ii from con-
tinuing certain Illegal diversions of
water shown to. have been committed
by it.