The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-06-25

of equity only can afford the relief
prayed for, its jurisdiction is unaffected
by the character of the questions in
volved. - Holland V. Challen, ITO L.
S. 25.
Nanbeck V. Jones, 100 Pa. ia; Rich
mond '. Bennett, eos Pa. As; Perkins
Y. Foye, so \. H. 1876; White V. Tide
Water Oil Co. 80 \. J. Eq. Z.
The defendant claims that Mrs
Knudsen should be joined as defendant
because directly interested in obtain
ing or resisting the relief prayed~for =
and materially interested in the sub
iect matter. But neither of these
facts is apparent from the bill which
does not show that she had anything to
do with the diversion of the water or
asserts any right to it, but alleges that
the water and water rights went TO the
plaintiff and its predecessors in title
with the conveyance of her land to the
Smiths and that she has since asserted
no claim TO them.
AS no relief is sought against her and.
as she is not shown to be connected In
interest with the subject matter of the
suit, she is not a necessary party. Union
Mill Co. v Dangberg, 81 Fed. 49,
The defendant contends that the
plaintiff s claim by adverse possession
since the date of the conveyance of 1896
and also by virtue of the conveyance
itself, with its apparent easements of
water, is inconsistent. But a title may
be pleaded as having been acquired in
diverse ways in order that the party al
leging title may have the benefit of
proof showing that it was acquired in
any one of the ways Tuthiil V Skid
more, PA n. Z. 100 As long as the
same kind of relief is asked by the bill
the plaintiff NAV aver facts Of differ
ent nature which win equally support
his application. Story, Ed. Pr, Sec. 254.
Several of the grounds OF the de-
murrer relate to the form of the bill,
the defendant claiming that the aver
ments upon information and belief place
in issue merely the information or be
lief. This is true or an ayerment of in
formation and belief but not OF aver
ment of facts based upon information
and belief. Wells V. Bridgeport Hydrar-
lie Co.. 80 Conn. 1913. GAS a general
thing injunctions ought not to issue up
on statements of material matters made
upon information and BELIEF (Mc
Candless V. Carter, Is Haw 224), but
necessary to state the source of the in
formation or nature Of the belief or
that positive knowledge is not obtain
able. The bill, however, in addition to
the averments upon information and be-
lief, contains a positive averment that
for over twenty years the e4sterly
branch of the Omao stream has been
used exclusively, openly and continuous
ly under claim of right by the plain
tiff and its predecessors in title, ten
years of this term having elapsed since
the date of the conveyance of Septenl- |
Der l, 1896.
The objection that the mesne convey |
ances are not described by which the
plaintiff acquired the property conveyed |
/, 1896, is not sustained. I'll
is sufficient for the purposes of the bill
that it AYERS that the plaintiff has OBJ I
tanned by mesne conveyance and owns |
the title secured Nv the conveyance.
Weber V. Gage, 80 N. H. 1S5.
The facts averred in the bill, if
proved or admitted, justify and require /
the relief sought and are averred with |
sufficient certainty. defniteness aal |
clearness to inform the defendant of the |
nature of the claim against it and en-
able it to prepare its defense, and to
enable the court to ascertain the plain
tiff s rights and render the proper de-
cree if the bill should be adjudged true.
The averment that under the lease
of 1874 the lessee without opposition
of the lessor, obtained control Of and
used the water which is claimed TO have
nassed by the CONVEYANCE shows no
right to the water other than such as
nay have been appurtenant to the lands,
and in argument the plaintiff disclaims
that it acquired any right thereby. 1t
bases its right on the fact that at the
date of the conveyance the water was
in use upon the granted lands openly
and under claim of right and therefore
passed as an apparent easement or APP
purtenance; that the subsequent acqui-
escance of the grantor, as well as of
the defendant, in such use is in the
nature of a contemporaneous construc-
ton of the effect of the conveyance;
that for the same reasons the portions
Of the ahupuaa then in possession of A.
H. Smith & Co, which are excepted
from the lease to the defendant of
August %, 1890, carried the water and
rights then in use upon them without
opposition by the lessor, and that at any
rate the TlghJ mas been acquired Dy
prescription from continuous and open
use since made under claim of owner
ship
Upon the claim of contemporaneous
the plaintiff cites Lowrey
'. Hawaii 206 U. S. 2O6. 222. the ease
'iting Brooklyn Life ms. Co. V. butcher,
IS u. S. 269, "There is no surer way
o find out what the parties meant than
% see what they have done''
Without passing upon the validity
# the claims of contemporaneous con
truction, if it is true, as the bill AYERS,
hat the grantees at the date of the
were using the waters upon
he granted lands without opposition
rom the grantOr and that the water
vas necessary for the use which was
hen made of the granted premises, the
light to such use passed with the grant
is an implied easement Dunklee V.
Wilton R. R. Co, "a n. H. SOY; Sim
mons V. Cloonan, 81 \. Y. 557; OuinIan
:. Noble, IS Cal. $50; o. r. & L. Co.
: Armstrong, IS Haw. POI. And see
Thomas V. Owen. 90 L. R., Q. B. D.,
%; Tiffany, Real Property. See. 317.