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

/ cult Judges original and exclusive 1ufiS
| diction of every original process In
which relief in equity is prayed for
except when different provision is
made; See. 1884 provides that they may
hear and determine in equity all eases
hereinafter mentioned when the par
ties have not plain, adequate and com
plete remedy at the common law, and
that they 'fshall have full equity juris-
diction according TO the usage and prac-
tee in courts of equity in all other
cases where there Is not a plain, ade-
quate and complete remedy at law;
by Sec. 164S they have power at cham
bers within their respective jurisdic-
lions ''to hear and determine all mat
tiers in equity The exercise of this
power is not limited to cases arising
within the respective circuits as is done
in divorce, probate, guardian and parti-
tion matters.
Waikiki Sug. Co. V. Cornwell, 10
Haw. 476, approved in Is Haw. 1875 and
IA Haw. 800, held that the jurisdiction
of a commissioner of water rights over
water controversy does not exclude
equity jurisdiction over water rights.
Act SO, s. /. 1907, giving to circuit
Judges jurisdiction to hear and deter
mine all controversies respecting rights
Of private ways and water rights ard
making it ''the duty of said judges,
within their respective circuits, to hear
and determine all controversies respect
ing rights of private ways and water
rights. - transfers to circuit judges the
jurisdiction in those matters formerly
exercised by commissioners of water
rights The original statute, S. il.
1856, p. Is, provided for commissioners
to hear and determine all controversies
respecting rights of way and to ''give
such decision as might in each particu-
lar case appear to them to be just and
equitable;" by act OF August IS, 1860,
S. l.. 1860, p. u, they were given power
to hear and determine all controversies
respecting rights of water It was not
the intention of the legislature that the
jurisdiction of the commissioners should
supersede the general jurisdiction of
equity over such controversies, but
merely that simple, expeditions and
inexpensive tribunal should be created
to determine these matters without a
Jury and without the formal procedure
of equity. A water controversy may in
voIve equitable as well as legal rights.
1t may amount to a mere trespass. The
fact that the law afforded a sufficient
remedy in damages would not have ex-
Guided the jurisdiction of the commits
sioners in water controversies. Nor I'M
der Act Sc would circuit judge have
jurisdiction in only such eases as could
be brought in equity. The transfer to
circuit judges of the commissioners
previous jurisdiction over water contro-
versies does not do away with their
equity jurisdiction in such eases. They
now hear and determine water contro-
versies relating to property within their
circuits, using the procedure provided
by statute for such cases and still have
general equity powers which they exer-
else according to the usage and prac-
tice of courts of equity'' when the
parties have not ''plain, adequate and
complete remedy at the common law, -
whether the case relates to property
within their circuits or not. Dole v.
Gear. IA Haw. 564.
We do not regard the decision in the
Cornwell case as resting solely on the
ground that the "creation of special
tribunal to hear a certain class of eases
does not necessarily GUST the jurisdic-
ton of the superior courts. /"
cit is a general principle, often fol-
lowed by this court, that if equity juris-
diction exists in the absence of a statu
tory remedy at law, it is not taken
away by the grant of such remedy
The jurisdiction in equity does not
cease and revive from time to time with
the enactment and repeal of statutes
which confer a remedy at law Dole
V. Gear, IA Haw. 564..
Under Sec 1888, R. L., the jurisdic
ton is exclusive Except when differ
emit provision is made, - but Sec. 1884
includes all the eases therein mentioned
when the remedy at common law is in
as well as all other cases
where the remedy at law, meaning by
statute as well, is inadequate. The cases
include suits concerning nuisance. 1t is
a private nuisance to divert or obstruct
a water course. Gardner V. Newburgh, |
2 Johns Ch 1854
In Parker V. Winnipiseogee Lake Co, |
? Black, 545, the plaintiff brought bill
to restrain the defendant from taking
the waters of the lake to supply the |
Merrimac river in time of drouth in |
order to secure a sufficient motive power |
for manufacturing establishments on
the river to the plaintiffs injury and |
damage in the use of the water to which |
he claimed to be entitled. 1t was urged |
at the hearing that the plaintiff had not
his right by an action at |
law, and although the objection was not |
taken BY demurrer or in the answer, the
court held that, being a jurisdictional |
objection, it might be enforced by the
court sua sponte though not raised by |
the pleadings nor suggested by counsel |
Treating the case as a private nuisance
the court held that 'the concurrent |
of courts of equity in cases
Of private nuisance dates back to an
early period in the growth of the Eng
fish equity SYSTEM and that ''it, is |
now too firmly established to be
but that "the case must be
one of strong and imperious necessity
II the right must have been previously
established at law. -
The case of Hartman Y. Jones. Or. &
Phi 301; Al Eng. Rep. sos. which is
,ited by the defendant in support of the
Lain that only the circuit judge of the
ifth circuit has jurisdiction and that
he case is triable not in equity but only
lnder Act SO. illustrates the rule that