The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-06-25
IN THE SUPREME COURT OF THE
TERRITORY OF HAWAII.
OCTOBER TERM, 1907.

by Appeal from Circuit Judge, First Cir
cult.
Argued June /, 2, 1908.
Decided June %, 1908.
PAYNE KARTwELL. c. J., WILDER AND
AS prov
- NEUTRALITY-SUSPICIOUS.
EQUITY has Jurisdiction to enjoin the
sons noio diversion of water long used under
paying WI claim of right. upon proper proof of
that the that right, which jurisdiction is not
months er ousted by the creation OF d s'dtu'oIy
:. A.. tribunal with authority to decide
% ~ water controversies.
july i9Oe Equity-parties-
On all A bill is not demurrable because a
on July person against whom no relief IS
. N - sought and who, upon the allegations,
" - asserts no right adverse to the plain
All Pr tiff. has not been made party.
main imp Eqnity-pleading
subject t, A bill for an injunction IS not de-
further nurrabie because certain matters n are
n@' upon information and belief
Honolulu orNIoN or, THE CoIrRT RY HART
ing. WELL, C. j.
Superinte This was a bill praying for tenn
We porary injunction to restrain the de-
June 49, PENDANT from continuing TO modest, IN
SoiV flow of the waters in the easterly
2e, 81, IS branch Of the omao stream as the same
-- flowed prior to December 20, 1907, and
Scaled from otherwise in any way diverting or
appropriasing the waters thereof and
~ from continuing to maintain certain
gents dams referred 70 in the bill, and from
In the j maintaining any dams, bitches, fumes
II o'cIocf or trnnels or other means OF carrying
900 =. or diverting the water from
'0 continuing to interfere with the plain
OF cert' tiff's use of its right of way along the
Copies Of easterly branch of the stream until fur
hooks art Their order of the court, and that upon
had of Il nnal nearing the injunction NC maui
Bids ~ The bin AYERS that the petitioner is
published. Informed and believes and on such in
ceyed N formation and belief alleges that De-
,,.o,,s eember IS 1874, Annie Knudsen, owner
of the ahupuaa of KolOa and of all the
some % konohiki water rights appurtenant
figured in thereto by ancient custom, leased to
o,,ira5 ~ James w Smith certain parts of the
ahupuaa for twenty-three years; that
i"e the lease was made for the cultivation
right to of sugar cane and under it the lessee
and his successors in title began and
established a sugar planting interest
upon the demfsed premises as well as
upon certain other lands owned or
: thereafter acquired by him in fee sim
SH pie; that under and by virtue of said
Under lease and by virtue of the ownership of
,,4f. the fee simple lands said James w.
of the r Iis'"s af aotroI Pf ,ee and NV
OF Hawa and in building up said planting inter
d. 1905. ests by the year 1880 there
C6ow v abouts to appropriate, dispose OF, con-
.cc-. IF troll, enjoy, and upon the demised
premises and his said fee simple prem
shuh ne Uses, among other waters and streams,
alias W. all of the water and water rights of the
Kee ALA Onlao stream and all branches thereof
Akena, Including their konohln water nights
- ~. and otherwise to control all of the nor
NAL and freshet waters thereof, inelud-
iua' IN ing the right to the uninterrupted flow
County of all the waters of said stream and its
on the 81 branches including the freshets there
unon n n of, without any upper or higher diver
! -, sion or interruption the part of said
o. Annie knudsen any person claiming
der at under her otherwise
Hale in That the petitioner is informed and
hal md On Sueh inf mat
1,s belief alleges that said exclusive use,
control and enjoyment of all said
al tue waters and water and konOhiki rights
said ku by said James w. Smith continued con-
alias w tinuously and exclusively in him and
alias al his successors in title under and by viz
$500, tue of said lease and the ownership of
az said lands by him, and a further lease
scrioed dated February 4, 1896, from the same
Nine H lessor to Jared X Smith for term of
ss-lCO q nineteen years from September 1, 1896
o,,ount that the successors in title under the
first lease and to the fee simple lands
ASsuSU of James W. Smith copartner-
my fees ship known A. III. Smith & Co., and
paid. that during the year 1890 they, by vir-
PR tue OF said Original tease ana ana ownership
/. Les sion, disposed of, controlled and used in
of the ! connection with the fee simple land
o,,, a, and leasehold lands and owned, among
: - ather waters and streams, all of the
20 Se water and water rights of the said
or prem Omao stream and its branches ineud-
containi ing the freshets flowing in the same and
or less all the konohlki rights IN the waters
,r thereof and had all of said water rights
in possession during said year of 1890
= Ae as first takers thereof without other or
Compan higher interruption diversion by said
A D. Annie Knudsen any claiming I'M
Kahuk,, der her by any other person or cor
- poration; that by the lease of February
" 4, 1896, said Annie Knudsen leased to
D. lie Jared X. Smith all the premises and
dated u waters and water and konohiki rights
premise Heretofore held, enjoyed and controlled
esS, by said James w. Smith and his sue
-. - in title under said original
-'Vf' = lease, said Jared X. Smith taking the
j; r. second lease in trust for the benefit of
c. \. e himself, Emma c.. Smith and Anne
soss: r. Juliette Smith then owning the orig
-, n inal lease and the said fee simple
lands of James W. Smith; that Septem-
l. Is Der 4, 1896, said Annie Knudsen, then
TO Akef being owner in fee simple of the ahu-
day of puaa of Koloa, sold and conveyed in fee |
describe simple to Jared n. Smith, Emma c. |
- Smith and Anna Juliette Smith all the |
lands and Entertainments situate in Ko- |
At an s lOa. describing the same by metes and |
>. l. bounds. which comprised the premises |
Akena leased by the lease of February /, 1896: |
= That the petitioner Is informed and |
believes and on such information and |
NaiAu belief alleges that at the time of said |
acre conveyance all of the water and water |
~1rl,+e I