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

r the same IN full but Tor romance upon
: the waters of the easterly branch OF the
!, Omao stream as well other water
i supplies owned by it and in its use and
i possession, and that it is too late IN the
5 season to develop an alternative or sub
stitute supply, and that said waters OF
} the easterly branch have been used
openly, continuously and adversely for
over twenty years in the cultivation of
cane by the petitioner and its predeces-
sors in title upon said koloa lands held
in fee by the petitioner.
The written instruments referred to
in the bill are (a) the lease of Decem-
Der is, 1874, from Mrs. Ample Knudsen
to James William Smith Tor twenty
} three years from January l, 1875, of
.'alI the lands of Koloa komohana,
Aepo and Kaohe, situate at said Koloa
and bounded east by Koloa Hikina and
the Mission premises-north by the
Meeting House Lot-the cemetery and
lands leased by R. w. Wood, west by
Land called Keekee, south by the Sea,
| reserving, however, Kuleanas and Lot
leased to J. D. Neal by Lot Kamehame-
ha under lease dated 18th day of
August, A. d. 1861, for 20 years. (b)
lease of February t, 1896, from Mrs.
for nineteen years from September /,
| 1896. of .'all that land except as here
matter mentioned situate at said Koloa,
and known as the Ahupuaa of Koloa,
and also all portions of land and any
kuleanas within the said Ahupuaa that
| have up to the date of these presents
! been purchased in any manner since the
vesting in fee of the said Ahupuaa in
the party of the first part, excepting all
such portion, parts and parcels of land
| of the said Ahupuaa of Koloa as are
held by the Koloa Sugar Company IN
der lease dated the twenty-sixth day of
August, A. d. 1890, and recorded in
Liber 128 on pages 304, 800 and 306, it
| being understood that all kuleanas not
owned by the party of the first part are
expressly accepted;' (c) conveyance of
| September /, 1896, by Annie s. Knud-
sen to Jared Knapp Smith, Emma c..
Smith and Anna JulIette Smith, for a
| consideration of $4,000, of ''all and
singular the lands and hereditaments
situate in said Koloa, and described by
metes and bounds in the Schedule here
under written, excepting Kuleanas not
| owned by the grantor, and being all of
the same premises leased by the grantor
to said Jared Knapp Smith by lease
dated the fourth day of February, 1896,
surrender of which said lease is hereby
made by said Jared Knapp Smith and
accepted by said grantor. To have and
to hold the premises hereinabove grant
ed and conveyed or expressed and in
tended so to be together with all the
rights, easements, privileges and APP
purtenances thereunto in any wise be-
longing or appertaining unto the said
grantees, their heirs and assigns for
ever. The deed contains covenants of
seizin in fee simple; good right to sell
and convey; that the granted premises
are free from all encumbrances, and of
general warranty; I'D lease of August
20, 1890, from Annie S. Knudsen to the
Koloa Sugar Co. for twenty-five years
from September /, 1890, of 'that GER
tain piece or parcel of land situate at
Koloa Island of Kauai and known as
the Ahupuaa of Koloa, and also all por-
tions of land or any Kuleanas within
the said Ahupuaa, that have up to the
date of these presents been purchased
in any manner since the vesting in fee
of the said Ahupuaa of Koloa in said
party of the first part. except all such
portions, parts or parcels of land of the |
said Ahupuaa of Koloa as are held in
possession of A. H. Smith & Co., at the |
date of these presents, and except the |
parcel of land in said Ahupuaa known |
as the 'Bindt Lot, and furthermore ex-
cept that certain parcel of land in said !
Ahupuaa held as a teachers house lot, !
and it being understood that all Ku-
leanas now owned by the party of the
first part are expressly excepted
The defendant demurred to the bill |
on the grounds:
81. That said bill of complaint does |
not state facts sufficient to entitle plain
tiffs to the equitable relief sought, or to
any equitable relief.
FII. That said complaint does not |
allege in positive and direct terms the |
facts upon which the prayer for relief is
predicated.
GIL That the facts alleged by |
plaintiff upon information and belief do
not disclose the source of information or |
nature of belief and are not charged to
rest within the defendants knowledge |
and not within the knowledge of the |
plaintiffs.
CIV. That the matters in said com
plant alleged on information and be-
lief do not show that positive knowl-
edge is not attainable or and that dan
ger of injury is immediate.
CIV. That said bill is uncertain and |
indefinite in this that paragraph two |
(unnumbered) of said bill upon which |
the so-called prescriptive right of plain
tiff is predicated does not show or pur-
port to show the source of complain
ant $ information, the nature of the be-
lief. nor does it show the manner in
which said alleged 'Konohiki' water
rights are acquired, nor does it show the
branches of Omao stream.
''VI. That said bill of complaint
affirmatiyely discloses a nonioinder of
parties defendant, to,wit, said Annie
Knudsen.
"VII. That paragraph four (unnum-
bered) of said bill is insufficient in law
and uncertain in this that the aflega-
tions thereof are predicated upon in
formation and belief and do not disclose
the source and nature of such informa-
ton and belief.
VIII. That paragraph five Gum
numbered) of said complaint is indefn-
lite and uncertain in that it does not