16 Haw. 113 | Haw. | 1904
Lead Opinion
OPINION OF THE COURT BY
Fourteen grounds are set forth in the motion for a .rehearing, but those that are relied on or that need be considered may be summed up in the proposition that the recent decision, reported in 15 Haw. 675, in respect of which a rehearing is sought, is in conflict with what has been referred to in this litigation as the Lonoaea decision, reported in 9 Haw. 675, as construed in the decision, reported in 14 Haw. 50, on the plea in bar in the present case. These last mentioned decisions are claimed to be con
Without going into details or stating exceptions or qualifications, it may be said generally that the court held in the Lonoaea case that the ancient right to a continuous flow of water in various auwais from the Wailuku stream had become converted by prescription into an alternate day and night right — this defendant sugar company to enjoy its prescriptive rights six days in the week and the taro planters their’s seven nights in the week. In the decision on the plea in bar, it was held that the Lonoaea decision adjudicated the prescriptive rights but not the
We may grant that the so-called ancient rights are not prescriptive rights, but this does not settle the question. The question is, what did the court mean by prescriptive rights in the former decisions ? If it meant to include all ancient' or all appurtenant rights or if it was of the opinion that all such rights had become converted to or merged in prescriptive rights, the construction put upon those decisions in the recent decision was correct, however inexact the language may have been in the former decisions. It may be said of those decisions that they were their own dictionaries much as was said of a grant in Damon v. Hawaii, 191 U. S. 151, as follows: “When the description of land granted says that there is incident to it a definite right of fishery, it does not matter whether the statement is technically accurate or not; it is enough that the grant is its own dictionary and explains that it means by ‘land’ in the habendum, land and fishery as well.”
The passage in the recent decision that is most in point and perhaps most complained of as to the meaning placed upon “prescriptive rights,” is the following: “Water covered by prescriptive rights. As to this, the judgment in the Lonoaea case is a complete adjudication. As already decided on the plea in bar, the rights in the surplus water were not adjudicated. In our opinion, all of the respondent’s prescriptive rights were adjudicated, including in the term prescriptive as here used the rights appurtenant to taro land. The right of taro lands to water has generally, if not always, been regarded and referred to by our courts as well as by parties as a prescriptive right acquired against the konohiki in the manner in which such rights can be acquired. In the decision on the plea in bar the term was so used.”
In this passage the court recognized the possible inaccuracy in the use of the words “prescriptive rights” as covering ancient rights appurtenant to taro lands, and so, in order to avoid misunderstanding, made its own definition for the purposes of that
The court further stated in the passage referred to that “in the decision on the plea in bar the term was so used.” This is an adjudication — a construction of that decision by the same Justices who rendered it. The court did not take the position
But was the term “prescriptive” in fact used in the alleged restricted sense in the former decisions ? In the Lonoaea decision, p. 661, the court referred to “kalo land which had acquired water rights by prescription” in such a way as to show that it meant to include the ancient rights. On page 664, in comparing the quantity of water under the ancient right with that under the right as changed by prescription to an alternate day and night right, it referred to the kalo land as land “which has acquired right to water by prescription” — meaning before the change to the day and night right. Lastly in its final judgment, p. 665, it held that the taro planters were entitled during the seven nights in the week to “such amounts of water as they have acquired by prescrintion for their various lands,” and that the defendant was entitled during six days in the week to “the water for its present estate from these auwais.” Here all appurtenant rights must have been included. The decision was that the right which had been acquired previously had become changed as to the time of user — not that some of those rights had become so changed or that a new right to an additional quantity of water had been acquired. It was that the continuous right had become changed to an alternate day and night right, not to a right in part continuous and in part alternate. The material change was in the time of user, not in the quantity of water. The decision was not that a right to a certain quantity of water during certain hours had been acquired, but that a right to a certain quantity continuously had been changed to a right to that quantity alternately. The alternate right was not a right acquired as to quántity by adverse user. If that were so, the former right to the former quantity would remain, unless lost by abandonment, which was not the case, and there would be rights to twice the water in the stream, which would be absurd. The old rights
The decision on the plea in bar is likewise full of indications that the court intended to include in prescriptive rights all appurtenant rights and that it considered that in the Lonoaea case the question was whether the ancient rights, that is, all of them, had become changed from continuous to alternate rights, that is, changed merely as to their mode of user, but we need not cite passages to show this in the same way as we have done in the case of the Lonoaea decision. We will confine ourselves to another line of argument. That decision — on the plea in bar —divided all the water into two classes — surplus and prescriptive. It defined, on page 61, “surplus water” as all water “that was not covered by prescriptive rights.” Therefore, if there were any ancient rights that were not strictly prescriptive
But it is contended that the court in its recent decision erred, not merely in holding that the previous decisions went farther than they did, in so far as it held that all appurtenant rights had been included in nrescriptive rights and that there were no appurtenant rights over and above prescriptive rights unadjudicated by the previous decisions, but also in overlooking the fact that it had been expressly held, as contended, in the decision on the plea in bar, that surplus and Sunday water had not been adjudicated in the Lonoaea, case. The passage in the decision on the plea in bar relied on in support of the latter contention reads as follows, p. 68: “It is not res ad judicata that the defendant is entitled by prescription, subject to the above mentioned exceptions, to all the water, however much there might be,
It is not disputed that Sunday water has been classed as surplus water in all three decisions. No distinction can now be made between these. The passage just quoted states in plain language precisely what the court held and it is not in conflict with the recent decision. The defendant contended on the plea in bar that the Lonoaea decision awarded to it under its prescriptive rights all the water in the stream during the day and .a reasonable proportion of the surplus and Sunday water, but the court held, as it stated in the passage above quoted, that the Lonoaea decision was not res judicata that the defendant was ■entitled to all the day water by prescription, and that it was not res judicata whether it was entitled or not to a proportional or any share of the surplus or Sunday water. The court in its recent decision proceeded consistently with this, taking the view •that the Lonoaea decision adjudicated only all prescriptive rights and not at all the surplus or Sunday water. To hold that there has been no adjudication as to whether the defendant is entitled or not in some way to any of the surnlus or Sunday water is not inconsistent with the view that it has been adjudicated that the defendant has no definite prescriptive or ancient or appurtenant right' to such water. All appurtenant rights, whether prescriptive or ancient, have usualH or at least frequently, been adjudicated as to particular lands, without any adjudication as to whether any surplus water could be taken under a right of some kind for such lands. The words “by prescription” found in the .statement' of the first proposition in the passage last above quoted were not intended to go with the second proposition also. ‘To implv them in the latter would make that proposition have ■a very different meaning from what was evidently intended, if not an absurd meaning; it would be inharmonious with the •construction of the sentence, especially in view of the repetition of the words “that the defendant is entitled” and the omission •of the words “by prescription” in the second proposition; it
The question whether a rehearing should be granted on the further ground that the court failed to credit the defendant with Sunday water as well as night water in respect of lands purchased from taro planters since the Lonoaea decision, is disposed of by the foregoing reasoning.
The motion for a rehearing is denied.
Concurrence Opinion
CONCURRING OPINION OF
As, in my judgment, this court, in its decision of the case at bar (15 Haw. 675) not only did not overlook any, but, without exception, fully considered all of the many points raised by