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

| said stream and branches without upper
or higher diversion or interruption by
said Annie Knudsen or any one else
and thereafter continuously hitherto al
said waters, wafer rights and konohik
rights in said stream and its bTanche:
have been openly, continuously, exclu
sivelv and under claim of ownership
used. enjoyed, controlled and disposed
of by the said grantees and their sue
eessors in title TO the lands conveyed by
said deed and TO the lands held origin
ally in fee simple by said Jared h
Smith, and that the said konohikl
rights and the right to said waters con-
stituted a vital and essential part OF
the consideration and inducement which
| led the grantees TO pay the grantOr the
| sum of $4,000 as consideration for said
/ deed: that by a series of mesne convey
| anceS all the lands, easements, water
! rights and property acquired by the
/ grantees under said deed and all of the
| lands owned in fee simple by said James
| ". Smith became the property of and
row are owned in fee simple by the
p:alntiff and have been used, enjoyed,
controlled and disposed of by it abso-
Iutely as it sees fit, except the Bindt
| lot. so-called. containing 4.03 acres, and
certain water rights for use of the
Smith homestead and then used through
certain pipes. fumes and bitches; that
September 20, 1907, while plaintiff was
in the exclusive, undisputed and peace
full use. possession, control and ENJOY
ment of said waters and kOnohih
rights. the defendant, without prior no
tice or demand, seized and appropriated
all of the water of the easterly branch
of the Omao stream and by means of
two dams and a tunnel diverted all of
the water of the said stream to its
premises adjacent to the plaintiff $
lands and has since continuously dl-
verted and appropriated all of the water
of said stream and allowed none of it to
90 down its ancient course to the Omao
river and has wholly deprived the
plaintiff of the use and enjoyment
thereof and threatens to continue said
diversion and appropriation;
That plaintiff is informed that the de-
PENDANT claims that said stream rises on
certain portions of the ahupuaa of Ko-
loa which are leased to it and that by
virtue of a lease from Annie S. Knud-
sent of August &c, 1890, it is entitled to
all of the konohiki rights of the ahu-
puaa of Koloa and by virtue of said
konohiki rights and certain water rights
acquired from native kuleana holders
below that it is entitled to appropriate
the water, and in so doing that 1t has
not taken more than its fair share of
the water of Koloa; and further that
many years ago some person unknown
to the plaintiff used such ditch at the
point in question and took waters from
said stream thereby and that a few
years since one Rego while cultivatIng
cane upon the defendant s land, with its
permission, placed a dam in said easter
" branch of said Omao stream and took
water therefrom;
Whereas, plaintiff says that for over
twenty years said easterly branch has
been used exclusively, openly and con
tinuously and under claim of right by
the plaintiff and its predecessors in title
and not at all by the defendant or any
one else, except that said RegO some
years ago while planting cane for him.
self on the defendant s land surrepti-
tiously and without claim of right led
water out of said stream and used part
of it on his cane. at which time WeinZ-
heimer, now manager of the defendant
corporation, then an overseer of its
lands, tore down the dam and returned
the water to its ancient course, and up
on interrogation McLane, then manager
of the defendant corporation, admitted
to the plaintiff that the attempted dl-
version of said water was unlawful and
promised StOdart, manager of the plain
tiff corporation, that it would not take
place again; that otherwise the plaintiff
has had exclusive and undisputed use of
said stream since its purchase and that
it bought the land and water rights in
question from the Koloa Ayr. Co. upon
the faith and in the belief that it was
entitled to all the waters and water and
konohiki rights of said easterly branch
of Omao as well as the main stream of
Omao; that upon the plaintiff discover
ing the said diversion of water by the
defendant one of said dams was, Janu-
airy 90, 1908, torn down and the water
returned to its ancient channel and to
the ,nse, possession and control of the
plaintiff; that upon the following night
the defendant reconstructed the dam
and renewed the diversion of water;
that the plaintiff 5 servants and agents,
under its instructions, then proceeded
along the easterly branch of the Omao
stream in lawful, peaceful and proper
use of plaintiff 8 right of way up and
along said stream with the intention of
tearing down the dams, but upon ar
irving there found it covered with |
Japanese, the defendant s servants, who
with force of arms resisted the attempts |
of plaintiff S employees to remove the
dams and turn the water back into its |
ancient channel;
Plaintiff denies the truth of any of |
defendant s contentious as to its right |
in the easterly branch of the Omao
stream or its right to divert the waters |
thereof, except as above set forth;
That by reason of the premises the |
petitioner is suffering and has suffered |
great and irreparable damages in that |
said water is appurtenant to and neces- |
sary to the proper maintenance of its |
cane fields upon its lands at Koloa and |
that without the water irreparable dam |
age will be done to the cane fields from
the petitioner 5 inability to acquire and |
store water against the dry months now |
near at hand whereby great injury and |
depreciation Will be caused to its crops
which cannot properly be computed or |
valued in money, and that the petitioner |
has no alanqata Of l., -