13 Haw. 378 | Haw. | 1901
OPINION OF THE COURT BY
These are proceedings in equity, wherein it is prayed that the respondents be enjoined from interfering with certain water rights alleged to be appurtenant to certain lands of the complainants situate in Manoa Yalley, Oahu.
The complainants hold under lease about twenty-three acres of taro land on the Ewa side of the main Manoa stream and about two acres of taro land on the Waikiki side of said stream. The respondents hold under like tenure four or five acres of land
Erom time immemorial two certain dams have been maintained aci’oss the Manoa Stream. The ©ne further mauka is called for the purposes of this case the Paaluhi dam and the, other the Bishop dam, the office of the latter being to divert water to irrigate lands on the Ewa side of the main stream and of the former to divert water to irrigate lands on the Waikiki side. It is agreed by the parties herein that the lands of the complainants on the Ewa side of the stream are entitled to the water flowing in the ditch leading from the Bishop dam, this ditch being hereinafter called Ditch A, every night from 6 R. m. to 6 a. m. and further on Mondays, Fridays and Saturdays from 12 o’clock noon to 6 3?. m.; and, subject only to the claim hereinafter stated, it is undisputed in this case that the respondents’ lands on the Waikiki side of the stream are entitled at all times to the water flowing in the ditch leading from the Paaluhi dam, hereinafter called Ditch B.
The complainants claim that their taro- land on the Waikiki side known as the Elemakule land, is entitled to water indirectly from Ditch B, to wit, from the respondents’ patches known as the Napua land watered thereby and adjoining the Elemakuleland on the mauka side, and that the respondents cannot lawfully divert the water from Ditch B back into the main stream or otherwise before the Elemakule land has been supplied. Respondents, on the other hand, absolutely deny that the Elemakule land is entitled to any water from the Napua land or from Ditch B, and say that the ancient water right of the Elemakule land was from certain premises across the East Manoa road known as the Bill Bray land.
The other main point in controversy in the case is this: the respondents claim that the right of the Napua and other lands watered by Ditch B is to take from the stream at the Paaluhi dam all the water which such lands may require for irrigation-purposes irrespective of whether or not much or little or any water is left to'flow past such dam after such diversion; while the
Eirst, as to the water right of the Elemakule land. The burden is upon the complainants to establish by a preponderance of the evidence the right claimed by them. To review at length and in detail the evidence adduced, seems to us to be unnecessary. Our conclusion is that the complainants have not established by a preponderance of the evidence that the land in question has acquired by prescription or otherwise the right to water from Ditch B through or over the Napua land occupied by the respondents. The evidence is too conflicting, uncertain and unsatisfactory to permit or justify a finding on this point in favor of the complainants.
As to the respective rights of the parties at the Paaluhi dam. We find from the evidence that from time immemorial the opening between the two stones in the Paaluhi dam, as above mentioned and as existing at the time this Court visited the locality last January, or an opening substantially like that just referred to, has been maintained by the parties interested in the water
The fact would seem to be, then, that prior to 1900 the droughts were of short duration and not severe enough to compel or lead to a definite test and settlement as to what the rights of the parties are at the Paaluhi dam when the water in the stream is insufficient to supply all the lands dependent upon ditches B and A. While water has been plentiful, each has taken as much as he needed and allowed the remainder to flow on and no one has been injured by the acts of any of the others. Certainly there is no evidence from which we can find that the lands dependent on Ditch B have by adverse user acquired the right to take at any time all of the water in the stream at and immediately above the Paaluhi dam. On the contrary, we believe from the evidence that the respondents, representing those lands, have no right so to do or to alter substantially the original and accustomed conditions at the dam and ditch. In times of drought, the dam and ditch must remain in
It is urged that the complainants’ contention with reference to the rights at the Paaluhi dam cannot be sustained, because enforcement of a decree in their favor would not be practicable. It is true that no accurate measurement of the quantity or proportion of the water flowing in Ditch B or in the stream past the dam has ever been made, and it is evident that such quantity and proportions vary at different times according to the quantity in the stream above the dam; but we see no inherent impossibility in continuing to do that which for a great many years the native Hawaiians have done, to wit, maintain the dam and the ditch in substantially the same condition as they were in January last and in the time prior thereto. It is better to maintain existing rights as far as possible and substantially than to knowingly alter them materially or to destroy some of them entirely.
The respondents’ bill of costs, amounting in all to $107.00 and allowed by the Circuit Judge, contains an item, “expenses dissolving injunction, $50.00.” In support of this item an affidavit was filed showing as we construe it, that respondents had paid their counsel the sum of $50.00 as a retainer for their
On the question of whether or not such damages may be assessed and awarded in equity, the authorities are not uniform, but we believe the better rule to be that they may so far as the complainants and principals on the bond are concerned, it being within the sound discretion of the court as to whether or not in each particular case it will itself dispose of the matter or leave the parties to an action at law. See Russell v. Farley, 105, U. S. 433, 445, 446; Coosaw Min. Co. v. Farmers’ Min. Co. et al., 51 Fed. 107.
The decree appealed from is reversed and the case is remanded to the Circuit Judge of the First Judicial Circuit with instructions to ascertain the amount of damage suffered by the complainants in consequence of the respondents’ wrongful acts and to enter a decree in accordance with his findings thereon and in conformity with the foregoing views.