22 Haw. 578 | Haw. | 1915
This is an appeal from a decree made and entered by the judge of the circuit court of the fifth judicial circuit granting an injunction to restrain the defendant from interfering with, hindering or obstructing the plaintiff in its use, repair or maintenance of a certain waterway lying and being in and upon and running through the premises of the defendant, situate at Kalaheo, Island of Kauai, known as homestead lot No. 49, and described in land patent No. 5491. The plaintiff alleged and proved a right to the use of the waterway under a grant from the government to one Isenberg, dated August 29, 1902, of certain ditch, flume, pipe and railroad ways and reservoir sites in the land of Kalaheo, “also the right, without charge, to develop water on the said land of Kalaheo and to appropriate to his own use and divert the same by most practicable route to Wahiawa or Lawai in said district of Koloa until the 25th day of May 1949, provided all development of said water under this grant to cease in five years after the expiration of the present lease of Kalaheo from the crown commissioners.” The lease referred to expired on February 15, 1909. It was further specified in the grant that “this indenture, however, is not intended to convey and does not convey to the grantee, his heirs or assigns, any right whatever in or to the natural flow of any water or waters on said land of Kalaheo, or the right to any diminution thereof after the expiration of said lease; hut the same shall be and remain as heretofore vested in the government.” The defendant in his answer denied the right and title to the easement set up by the plaintiff, and the first point for consideration is in the contention that a perpetual injunction will not be granted to protect legal rights in property unless the plaintiff’s title is admitted or has been established at law and that equity will not ordinarily try a disputed title. In McBryde Sug. Co. v. Koloa Sug. Co., 19 Haw. 106, a case analogous in principle to the case at bar, where the rule in question was invoked, this
On behalf of the defendant two points have been urged in this court as to which no question seems to have been raised in the court below, viz.: that the defendant is entitled to prior notice of the intention of the plaintiff to enter upon his premises for the purpose of cleaning the waterway, and that the waterway, for the sake of certainty, should have been particularly described in the decree. Assuming that these two matters should have been ruled upon in accordance with the contention had the points been raised, the omission to cover them does not affect the correctness of the decree. The defendant’s right to notice, if it existed before the decree, has not been abrogated by it. And as to the waterway in question, there appears to have been no misunderstanding or dispute between the parties as to its identity, location or limits. While an appeal from a final decree in an equity suit brings to this court the whole case
Finally, it is urged that the decree and the injunction are too broad and go beyond the case presented by plaintiff’s bill. We think the decree, properly construed, is not open to the objection made. The waterway is described in the decree as “a waterway for carrying water by direct flow and by seepage from the plaintiff’s reservoir No. 1 * * * to plaintiff’s cane fields in Lawai” but the prohibition of the injunction authorized is against interfering with or obstructing the plaintiff in its use and repair “of said waterway lying and being in and upon and running through the said Kalaheo Homestead Lot No. 49 and described in land patent 5491.” This was the limit of the relief to which the plaintiff was entitled under the case made. It was not claimed that the defendant had interfered or threatened to interfere with plaintiff’s use and enjoyment of its easement elsewhere than within his premises. The injunction, however, is open to the objection made in that its. inhibitory provisions ■extend to the waterway in its entire length. It commands the defendant to refrain from hindering or obstructing the plaintiff “in its use and enjoyment of an easement of way in and along the stream bed or bottom of the natural gulch extending from the waterfall above the hereinafter described land of the defendant through and below said land * * * from its reservoir No. 1, * * * to its cane fields in Lawai” etc. The defendant, on application to the circuit judge, would be entitled to have the injunction modified so as to make it accord with the decree. The affirmance of the decree will not preclude such action.
.Decree affirmed.