The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-06-03


early yesterday afternoon in the long
fought case of the Hawaiian CONNER
cial and Sugar Company VS.. The Wal
luku Sugar Company over the vexed
question of water rights in lao valley,
Maui. The decision grants with speci-
junction prayed for to restrain all IL
legal diversions Of water from Wailu-
ku stream, Maui
age on the watershed of the Wailuku
stream, that of the plaintiff being
much larger than that of the respond
ant, the difference being between a.
SAL acres and 1880 acres. The respond
ent has been in the habit of using GER
tain waters between certain hours, 4
a. m. to D. m. on week days and
D m to 4 a. m. on Sundays, and claims
vested rights of surplus waters for 1875
acres of land decided in 1863 by Kane
hameha w.
The water in question IS not merely
that of the ordinary flow of the Wal
luku stream. but of the small freshets
that occur ordinarily once in ten days,
also the storm waters. Certain dams
have also to be kept up by respond
emit The case was appealed from the
decision of Circuit Judge De Bolt of
the First Circuit and was submitted
on December %, 1903. A. S. Hartwell,
counsel for the complainant, and Kin
ney, McClanahan & Cooper for respond
ent
The injunction issued. for which
decree will be made in accordance up
on application, restraints respondent
from diverting any water from the Wa
iluku stream on Sundays between 4
a. m. and 4 p. m. or on any day be
tween p. m. and 4 a. m. except for
taro lands, and from diverting from the
Maniania ditch any water between 4
p. m. and a. m. any day. Also from
diverting into Maniania ditch by day
any water at such time as to prevent
the entire water in the Wailuku stream
from being at p. m. where it would
be but for such diversion and from
otherwise exceeding rights as declared
in the opinion.
Justice Perry is author of the opinion,
of which the following is the syllabus,
covering the points decided:
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 a
portion Of the ahupuaa not bordering
on any stream nor having any streams
or springs within it.
BY the judgment in the case of Lono-
aea vs. Wailuku Sugar Company,
Haw. COL, 665, 666, all of the prescrip-
tive rights to water then owned by the
respondent were adjudicated and
awarded to it.
By the term Its present estate" used
in that judgment, was meant only the
9S4 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
Iuku 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 statutA 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' Cmeaning the various large au-
wais then leading from the Waikiki
river) ION each day of the week, ex-
cepting Sunday, from four o'clock a.
m. 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 its present es-
tate thus awarded means the water
needed, without waste, for the 9Si
acres, constituting the respondents es-
tate at the time of the institution of
that suit, if cultivated in cane, linn
tied, however, to the quantity flowing
in the auwais as they were at that time
and diverted by the dams kept sub
stantlalIy. as to 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 fTeshets,
10 Id fc Inns