10 Haw. 174 | Haw. | 1895
OPINION OP THE COURT BY
This is a suit brought before Henry Dickenson, Esq., Special Commissioner of Water Rights for the District of Lahaina, Maui, alleging a controversy between plaintiffs and defendants in respect to the amount of water, method and time of its use upon lands owned or held by both parties. The water in question flows from its sources at the head through a deep valley called Kauaula, situated in the rear of the town of Lahaina. The entire stream is taken up and used upon land in the valley on both sides of the stream for irrigating crops of kalo and on the flats below for sugar cane. Except on occasions of freshets none of the water is wasted by running into the sea. This region was formerly thickly populated, and the kuleanas granted to natives by the Land Commission within and outside of the valley are numerous. The plaintiffs own the extensive sugar plantation which occupies a large portion of the old town of Lahaina. They have acquired a large number of the ahupuaas which, though small in area are very numerous in the district of Lahaina. They have also acquired by purchase and by lease many kuleanas. A list of all the lands, ahupuaas, ilis and kuleanas under the water system of the Kauaula stream, as awarded by the Land Commission is given in the complaint, and a separate list of the lands owned or held by the plaintiffs is also given. It was evident to us
The testimony shows that during a good portion of the twenty years last past the plantation had not insisted that the “eleven day” system of supplying the water should be strictly executed, but, about three years' ago efforts were made to confine the natives cultivating the kalo land mauka to the old system. Mr. Campbell says that he, when planting cane in Lahaina, relaxed the system in times of plenty. Mr. Henry Smith the present head water luna of the plaintiffs, says that “the rules that Kahau-lelio spoke about (the ‘eleven day’ system) were not carried out when my predecessor was discharged and I was appointed.” This was about 1892. The testimony of those familiar with the “eleven day” system say (and it was so found by the commissioner) that when the water day of a certain land came around all the water of the Kauaula stream was entitled to be turned into the particular auwai leading the water to the said land. This does not seem to be the case in actual practice, for we found on the 30th of Uovember last that all the water flowing in the Kauaula stream was not turned into any auwai and the flow was such that it could not possibly be taken into the Piilani au-wai. This auwai is narrow and not deep and would not carry more than half the entire stream of Kauaula. But this was not the dry season and the stream was not at its lowest. It would seem as if the plaintiffs’ water lunas were accustomed to turn in to the respective auwais only a portion of the entire stream and keep quite a flow of water running in the stream day and
The plaintiffs, while contending that they have the right to use the water on the makai lands irrespective of the days allotted in the system they contend for to each individual land, urge that the defendants’ right to water mauka is limited to the use of the water only on the assigned day and that failure to use it on that particular day works a forfeiture of it until the “day” comes around again. So a kalo patch, through any misadventure not getting its water on its particular day, might be without it for twenty-two days. Their contention goes further, they claim that the various kuleana holders (defendants) are not authorized to exchange water with each other, and that water assigned under the water system under discussion to a particular land cannot be used upon another land on that day. We cannot agree with this contention. The right to use the water on a certain land on a certain day being established by prescription gives the owner of the land so far forth the right to use that water as he chooses, and he may allow part of it or all of it to be used elsewhere, provided this diversion does not injuriously affect others. The principle that water may thus be diverted has been abundantly established by decisions of this court. See Peck v. Bailey, 8 Haw. 658; Kahookiekie v. Keanini, 8 Haw. 310; Lonoaea v. Wailuku Sugar Co., 9 Haw. 651. It is an important principle for the plaintiffs as well as defendants. It is evident from the testimony that the intent and spirit of the ingenious “eleven day” system of water supply in this locality, elaborated from long experience by men whose aim was to secure equal rights to all and to avoid quarrels, was to give the mauka
It is beyond the province of this court to adjudge and decree that each kuleana holder shall tamp his patches and banks when replanting and keep his auwais free from weeds and grass under penalty of being deprived of his right to water. Self-interest ought to secure good husbandry. But it is equally impossible for this court to require the plaintiffs to display the same spirit of accommodation to the necessities of a particular kuleana holder that was in the old konohikis.
The detail of the execution of the system of using the water in question must be left to the honesty and fairness of the parties interested. We can only pass upon the legal rights involved.
We are authorized by the statute to make “such decision as may in each particular case appear to be in conformity with vested rights and be just and equitable.”' We find therefore as follows:
The lands watered from the Kauaula stream are separated into two principal divisions. Division one consists of the lands from Wainee to Polaiki, including both. Division two consists of the lands from Puunauiki to Waipaahao, including both. Principal Division one comprises the following named lands: 1, Wainee and Pakala; 2, Wainee two; 3, Wainee one; 4, Mo-kuhinia; 5, Puaanui; 6, Puaaiki and Waiokama; 7, Kooka; 8, Alio; 9, Kamani and Ilikahi; 10, Polanui; 11, Polaiki.
Principal Division two comprises the following named lands: 1, Puunauiki; 2, Puunau 3STui; 3, Puunau and Kaulalo; 4, Ila-lakaa; 5, Puehuehuiki; 6, Puehuehu ISTui; I, Puehuehupiliwale; 8, Makila; 9, Pahoa; 10, Puupapai; 11, Waipaahao.
These two principal divisions take the water for eleven con
The lands of Kauaula and Makila above the head of Piilani auwai are entitled to water whenever needed without reference to “days.” Kuia is entitled to water on Kooka’s day and Haleu to water on Puupapai’s day.
The whole of the Kauaula stream is entitled to be turned into the respective auwais when the assigned day or night comes round, for the use of the land whose day or night it is according to the above schedules. The amount of water to be turned into any particular auwai is not discretionary with plaintiffs.
The kalo patches mauka are first to be filled full to the brim or .top of the kuaunas (banks), and the auwai to be then closed at its head and the water remaining in the auwai is to run down to the patches then just filled, and not to the land whose turn comes next. When these mauka patches are -fully supplied and the auwai closed, the water will continue on in the bed of the stream to the lands of the same name below during the rest of the “day.”
Agreements made between the parties defendants consolidating their rights to water and using them jointly are allowable, provided no injury is thereby done to others.
Costs in the Commissioner’s Court and in this court to be divided between the parties.