The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-10-26
THE PAlOLO
WATER CASE
Mrs. Nakuina's Decision
Reversed on Cross
Appeals.

By a unanimous opinion. written by
Chief Justice Frear. the Supreme Court
reverses the decision Of Mrs. Nakuina,
Water Rights, on cross appeals from
her in the suit Of Palolo Land & I'm
provement Co., Ltd, VS.. Territory OF
Hawaii and Kaane Kaumaka.
The reasons for reversing the deci-
sion are insufficiency Of the petition in
showing parties in interest and lack OF
service either personally or by publica-
ton on anyone. The president Of the
PaIoIo company brought the case with
out lawyers aid by filing an in
| formal, unentitled petition directed to
the commissioner, alleging that 1t was
the owner of the land of Kaea and
that the owners of Kaea are entitled
| to all the surplus water of said lands.
| and it now asks to be allowed to use
all of the waters as they See fit"
! Nothing was said about any other
person or persons as being interested
| in the question, or disputing the claims
made, nor anything as to what use
the petitioner was making of the water.
Neither was there any prayer for proc
ess. There was nothing on the record
to show that summons was served up
on anyone.
Without notice to all concerned IAN
attempted adjudication, even if favor
able to the petitioner, would not serve
| it's purposes the Supreme Court says,
''for it's object evidently is to make
sure of it's right to the water before
| mourning the necessary expenses for
its use elsewhere
| Aside from that, the petitioner ask
ed merely to be allowed to use all the
waters as it saw fit. On this the court
says:
| THE waters are not the commission
ers TO dispose of. The most that the
commissioner could do would be to say
that the petitioner could use the waters
as it saw fit provided it did so without
injury to others, but that would be a
mere statement of a proposition of law
which would not benefit the petitioner.
What the petitioner really desires IN
effect is a decision that it is the owner
of all the waters on the kaea lana,
but it does not ask to have that ao1u-
Dictated except theoretically and does
| not even allege that it Is entitled 10
all the waters on that land; on the
contrary it alleges only that it is en-
titled to all the surplus water. But
assuming that it properly alleges that
| it is the owner of all the waters on that
land and asks to be so declared, the
suit could be sustained. if at all, only
a. analogous to a suit in equity to
quiet title or remove a cloud, or a
statutory action to quiet title, but al
legations necessary to sustain even
such a suit or action are wanting,
: etc.
The court says. mo doubt water COM
missioners sould not be held to IN
due strictness in their proceedings, but
there are limits beyond which they
should not go and, in our opinion, those
limits have been passed in this case
1t is stated that practically the same
result, so far as the petitioner Is con-
cerned. would be reached if the ap-
pelIate court should attempt to decide
the case on it's merits. It goes without
saying that diversion of the waters
could be made by the petitioner II not
Injurious to others and therefore, the
court says. 1.-The decision in order TO
be of practical value would have TO
include a finding that no diversion
whatever could be injurious to others
proof of which would be incumbent
on the petitioner. We should at least
hesitate a good deal before undertake
ing to say in advance that any diver
sion would not be injurious to others
and thus preclude others for all time
from showing the contrary. That ques-
ton might be more easily settled after
a diversion than before.
d. L. Wilmington castle & Whiting
ton on the BRIEF for petitioner, +. w.
MiIverton, Deputy Attorney General,
&c. c. Peters, Attorney General, on the
brief for respondents.