8 Haw. 658 | Haw. | 1867
The complainants allege that the defendant has, by a dam and other means, illegally and wrongfully diverted the water of Wailuku river from their mill and premises, which has caused great interruption to the use of their mill and injury to their cane. The complainants further allege that the defendant has extended the water course, which supplied his kalo land, so that it watered kula land of defendant which never was and is not now entitled to water, and thereby has diverted a large quantity of water from its usual course, and which from time immemorial has had its flow 'to the mill and, premises of complainants. The complainants pray that the defendant may be restrained by the injunction of this Court from making this illegal diversion of the water of the Wailuku river, as it has prevented the water flowing to the mill and premises of complainants in such regular quantities as they are entitled to,, and to their great injury.
Defendant admits title to the land in occupancy of complainants, but denies their rights as lord paramount of Wailuku river, and claims that he has not used more water than he is entitled to by prescriptive right, immemorial usage, and the law of the Kingdom; that he has not dammed the Wailuku river any further than was necessary to make the usual diversion of water
The defendant alleges that complainants diverted this water, a large portion of which had always run in the Wailuku river, and used it for the irrigation of large quantities of cane land on the north side of the river, which is the opposite side from the mill and premises of complainants. The issue is. substantially this, viz :
1st. The complainants claim the rights of lord paramount over the Wailuku river. '
2nd. They allege that the defendant has wrongfully diverted from their mill and premises more water than he was legally entitled to by the Kamaauwai, to the great injury of their mill and cane.
3rd. They allege that by the extension of the Kamaauwai beyond its original and true terminus, the deféndant has conveyed an undue quantity of water — far more than he was entitled on the twelve acres of kalo land, called Kapohakuokauhi — on to his kula land beyond, and also that he has illegally diverted this water from the kalo patches, as the surplus had always passed over the road, adjacent to which they were situated, and watered complainants’ land below.
The title of the land held by both parties, the rights and privileges of which are called in question, is derived from the King, and from the award of the Land Commission, on which Royal Patents have issued, or which are entitled to the same on complying with the usual conditions. By the Act passed on the 7th day of June, 1848, by the King, in co-operation with the Nobles and Representatives, a division of the lands of the Kingdom was made, in which certain lands were declared to be the
There can be no difference of opinion that the complainants were entitled to all the water rights which the lands had by prescription at the date of their title. By the deed, the water courses were conveyed and a right to the water accustomed to flow in them. The same principle applies to all the lands conveyed by the King, or awarded by the Land Commission. If any of the lands were entitled to water by immemorial usage, this right was iucluded in the conveyance as an appurtenance. An easement appurtenant to land will pass by a grant of the land, without mention being made of the easement or the appurtenances. But if lands had not such rights, and no additional grant of water rights was made, it certainly could take nothing by having been a portion of the Ahupuaa. It appears by the deed of the land of complainants, on the north side of the river, that the land although comprising several hundred acres is bounded by the river only b}^ a small portion of it. How far this would affect its riparian rights, is not material in this case, for the reason that the right which it enjoys by the Kalaniauwai is far more than its riparian right — all riparian proprietors have taken this conveyance, subject to the rights of others enjoyed by prescription. So if a riparian proprietor should interfere with an ancient auwai, by which other lands had been watered from
The complainants contend that they have the right of lord paramount to the Wailuku river. The grantor of a large portion of the complainants’ land had the same right as his ancestor, who was the konohiki of this Ahupuaa, subject to the rights of tenants, which were afterwards confirmed by the Land Commission. These rights were certain taro patches and the water necessary for their cultivation. Thig was a limitation to the entire control of the river.
The grantor of complainants has conveyed portions of this Ahupuaa to several persons. Each grantee will hold all that has been conveyed to him, unless it should conflict with a previous conveyance. This includes the water courses on their lands, and all the water which the lands had enjoyed from time immemorial. The deeds to defendants were from the same source originally and conveyed similar rights and privileges as appurtenant. So it appears by the deeds to the complainants and defendant, that a lárge part of the Ahupuaa has been conveyed to them by the konohiki, with all the rights and privileges appertaining. By the evidence it appears that there are large valuable water rights appurtenant to these lands. It is very evident, therefore, that-the complainants cannot be lords paramount
The next material question is that of a diversion of the water by the defendant to the injury of the mill and premises of the complainants.. The title of the land on which the complainants’ mill is situated is derived from an award of the Land Commissioners to William Lunalilo, and by him leased to them. As alleged, there was formerly a sugar mill at the same place on w'hich the mill is now situated, and the same was erected and used by order of Kamehameha III. That in consequence of the extension and diversion of the water flowing through the Kamaauwai from the Wailuku river, the complainants have been deprived of their usual flow of water, so that their works have been obliged to stop, and have been otherwise injured in their usual business of sugar culture and manufacture.
The Court have already declared that the complainants are entitled to the same flow of water in the water course to the Wailuku Plantation Mill as has run there from time immemorial; but after a very careful examination of the evidence, I am of opinion that whatever deficiency there nmy be, in comparison to former times, it is accounted for by the fact of a diversion of water above, by the Kalaniauwai, of far larger quantity than ever flowed there before. Some of the witnesses testify that there are two or. three times as much as formerly, and that it waters some four hundred acres of cane of complainants. It may be well to remark here that the complainants commenced planting in 1863. It will not be seriously contended by the complainants that they had a right to lessen, by the Kalaniauwai, the quantity of water in the water courses below, and if they did, that they could claim damages.from those interested in
From the general current of the evidence, it appears to me most manifest that the injury which the complainants have received, from want of the usual flow of water to their mill, has arisen from their own acts. They have diverted a large quantity of water by the Kalaniauwai, which was accustomed to flow in the Wailuku river, and which supplied the Kamaauwai and the mill water course. There is nothing in the titles which give to complainants any pre-eminent rights, and they are not justified by the evidence.
My opinion is that the Kamaauwai, the Kalaniauwai and the Wailuku Mill water courses are each entitled to the quantity of water which has usually flowed therein, and that the owners of neither can rightly divert water from the other. Their rights are based upon grants and immemorial usage. No riparian proprietor can lessen these rights. The owners of the lands watered by the Kamaauwai have no right to increase the flow, and the weight of evidence is that they have not, and that the quantity which now flows is in conformity to the ancient usage, and that it does not exceed it. It is in evidence that the amount of water varies very much in the Wailuku river. It is subject to freshets. The head of the Kamaauwai is usually washed away in the water, and the bed of the river is lowered, which renders it necessary to build up a wall so that the water can flow into it. All the inhabitants interested in lands watered by it have, for many years, united for this purpose.
The complainants further allege that the defendant has diverted and extended a lateral water course of the Wailuku river
In the deeds introduced by the parties, it is not set forth for what purpose the water to which the lands were entitled by prescription should be used. It is very well known, however, that originally the water was wanted mainly for the cultivation of kalo and more recently for cane. If land has a water right, it will not be contended that the water shall be used forever for the same crop, be it kalo or cane. It may be used for any purpose which the owner may deem for his interest, always taking care that any change does not affect injuriously the rights of others.
If the persons whose lands and mills are watered by the Kamaauwai have not taken any more water than what they have always enjoyed, the complainants have no cause of complaint. As Chief Justice Shaw says in the case of Elliot vs. Fitchburg R. R., 10 Cush., 195, “ If the use is lawful and beneficial, it must be deemed reasonable and not an infringement of the rights of the plaintiffs, if it did no actual or perceptible damage to them.” Various parties interested in the Kamaauwai have hitherto
When a party has the right of water, he can use it for any purpose, although different from the original use, and in a different place, if the change does not effect injuriously the rights of others. Angel, in his valuable treatise on water courses, has given the law and cited the authorities which sustain it on these points. In the case of Hall vs. Swift, 6 Scott, 167, where the plaintiff had a right to water flowing from the defendant's land, across a lane to his own land, and it appeared that formerly the stream meandered down a lane before it flowed on to the plaintiff’s land, and that in the year 1835 the plaintiff, in order to render its enjoyment more commodious to himself, a little varied the course by making a straight cut direct from the opening under defendant’s hedge, across the lane to his own premises, and this it was contended negatived the right claimed ; Chief Justice Tindal, in delivering his opinion, said: “If such an objection as this were allowed to prevail, any right, however ancient, might be lost by the most minute alteration; the making straight a crooked bit of footpath would have this resnlt. No authority has been cited, nor am I aware of any principle of law or common sense, upon w’hich such an argument could base itself.”
Where a right exists to use a certain quantity of water for propelling machinery, a change may be made not only in the mode and objects of the use but in the place of using it, if the quantity of water used is not increased, and the change is not to the prejudice of .others. Thus a party had for more than twenty years used a certain quantity of water at a particular dam: it was held he might open his gates and draw that quantity without usiug it there, in order to use it at other works below on the same stream. And the owner of the mill may even draw a larger quantity of water through his gates than he had been accustomed to use, if he has lawfulh' provided the surplus, for his own use, by means of a reservoir above, and causes no injury thereby to the owner of another mill situated upon the same dam, or to other persons having rights in the stream.” Whittier vs. Cocheco Manufacturing Company, 9 N. H., 544; Bracegirdle vs. Peacock, 10 Jur., 9.
In the English Court of Exchequer an action was instituted for the diversion of water, the plaintiff alleging in his declaration a reversionary interest in three closes of land, to wit, three ponds filled with water, one pond being on each of said closes, and a right to the flow of water into such closes for supplying the said ponds with water. The defendant traversed the right. It appeared in evidence that the plaintiff had enjoyed an immemorial right to the flow of this water into the ancient pond in one of his closes, but that when thirty years ago he made a new pond in each of the three closes, and turned the water so as to supply them, he thenceforth disused the old pond. Park, B., said : “ The use of the old pond was discontinued only because
In the case of Saunders vs. Newman, 1 B. & Ald., 258, the claim in the declaration was for a mill generally. It was held that the right to the discharge of the water was not lost by an alteration in the dimensions of the water-wheel. “ The owner,” said Mr. Justice Abbott in that case, “is not barred to use the water in the same precise manner, or apply it to the same mill; if he were that would stop all improvement in machinery.” The same principle applies with equal force to improvement in agriculture. “All that the law requires,” says Chancellor Kent, “ is that the mode or manner of using the water should not be materially varied to the prejudice of other owners; and the proprietor is not barred to use the water in the precise manner, or to apply it to the same mill, for such a construction of the rule would stop all improvement in machinery. He is only not to abuse the enjoyment to the prejudice of his neighbors.” See Kent’s Com., 576.
It is fnrther contended by the complainants that their lands, situated in Kalua, opposite and across the road from the twelve acres of kalo land of defendant, have been injured by the diversion of water, as formerly the surplus passed from the kalo patches into a ditch bordering on the road, and thence flowed across on their lands, and had done so from time immemorial. It appears in evidence that the Kalua lands were snpplied with water from a branch of the Kamaauwai, and that the original design of its extension was merely for the purpose of watering the twelve acres of kalo land. The question is whether it was such a use as would give a prescriptive right. It is unlike the case of adjacent proprietors of kalo lands, when water is sup
And the defendant contends that he is under no legal obligation to keep this land forever in kalo, to supply a drainage to the lands of complainants. It is entirely unlike the use of a viaduct laid out by the konohiki, to accommodate several lands, or a series of kalo patches, and the flow from one to another. In the case of Wheatley & Baugh, 25 Penn., Chief Justice Lewis says, that “to entitle a stream to the consideration of the law, it is certainly necessary that it be a water course, in the proper sense of that term.” Washburne says in his very valuable work on Easements and Servitudes, 378, that “the law has never gone so far as to recognize in one man a right to convert another man’s farm to his own use for the purpose of a filter.”
A man may drain his swamp, although by so doing he may prevent the water which was accustomed to collect there from penetrating the earth, and thereby finding its way into a stream which flows to an existing mill, and thus diminish the quantity which was usually supplied thereby.
So if the water of a mill is accustomed to overflow and spread itself upon adjacent lands, without forming any definite channel, the owner may stop such overflow, although he thereby prevents its draining into a ditch through which it finds its way into a small stream, and in that way injuriously affects the operation of a mill thereon; 2 Washburn on Real Property. When a tract of land attached to an academy is purposely left unenclosed, and an owner of adjacent land passing over such tract for more than twenty years, such passing is regarded as permissive and not adverse; so that he acquires no right of way, unless he does some act indicating a use under a claim of right. An adverse right to an easement cannot grow out of a mere permissive enjoyment for any length of time.
The counsel on both sides have made frequent reference to the rights of riparian proprietors at common law. The principles which govern them have very little practical application to this case. A riparian proprietor has a qualified property in the soil to the thread of the stream, with all the privileges annexed thereto by law. He has a right to divert the water for irrigation, but it can only be done so as not to injure other proprietors. It is often a nice question where the right ends and the wrong begins in the scale of admeasurement of such diversion. If it is made only of such water as the complaining party could not have used for a beneficial purpose, and made in a reasonable manner, and for a proper purpose, an action will not lie. If the rights of these parties were limited to those of riparian proprietors, they would be much less than ■ they are. In Tyler vs. Wilkinson, 4 Mason, 397, Mr. Justice Story says, “ that the riparian proprietors have annexed to their lands the general flow of the river, so far as it has not been acquired by some prior and legally operative appropriation.” In this case the right of the parties consist in the water courses, diverted
The counsel for defendant contends that the right of irrigation is a natural right. It is an incident to an estate if a stream of water runs through it. This principle does not apply to lands situated as the defendant’s are. His claim is based exclusively on an artificial water course which was included in his grant as an appurtenance. The counsel would not seriously contend that natural rights, even in an arid country, would authorize a man to trespass on the property of others, in order to procure water for his own lands. It is very true that irrigation early claimed the attention of the cultivators of the soil on these islands, not only from the fact of its being a necessity ou most of the land, but from the fact that the vegetable from which the national food of the country was furnished required flowing water, and hence in all portions of these islands the traveler will see evidence of ancient water courses, as well as those now in use. The water courses on this Ahupuaa have existed from time immemorial, and were doubtless made by the order of some ancient King, and when the late King conveyed these lands to the proprietors, the rights of the water courses, in their full enjoyment, was included as an appurtenance. While the King owned this Ahupuaa, he had a right to apply the water to what land he pleased, but after the water courses were made, more especially after being in use from time immemorial, his conveyance of the land would include them, the same as his conveyance of land bordering on the Wailuku river will include the rights of water in said river, which had not been before granted. It is very evident that each party has rights to the water courses running through their lands, the title to which they have shown.
The kula land of the defendant has no riparian rights, and it does not appear by the evidence that it has any prescriptive rights of irrigation by the Kamaauwai. The counsel has made the allegation that this land has a natural right to irrigation, and that all lands have it in arid countries. There is no doubt that the law which regulates the uss of water would be somewhat different in tropical countries from that in a northern latitude.
In a final adjustment between these parties, they may regard certain principles as settled, that as they hold from the same grantors, and with similar privileges and appurtenances, and neither having exceptional rights, each is entitled to all the rights which his deeds give him, no more and no less, at least so far as their rights conflict. Kalaniauwai, Kamaauwai and the mill water course are entitled to all the water which have flowed in them from time immemorial. And if at any time there is a drought, and the water is diminished in the Wailuku river, these auwais will lose pro rata. The proprietors of the Kalaniauwai have no right to divert the water of the river so that the Kamaauwai and the mill water course will not have their usual flow. And it is very clear that had there been the same flow of water in the river as there was prior to the cultivation of land on -the north side by the complainants, and the enlargement of the Kalaniauwai, there would have been no occasion, to lessen the water in the mill water course. It is in evidence, satisfactory to my own mind, that those interested in the Kamaauwai have diverted a disproportionate quantity of water, as it flowed in the Wailuku river, from the mill water course. But the evidence is conclusive that the complainants have diverted a very large quantity of water into the Kalaniauwai from the river beyond its prescriptive rights, which, prior to the cultivation of their plantation, supplied the Kamaauwai and the mill water course, of complainants. And as they have caused the deficiency in the river, they have no reason to complain of the diversion as it is not greater than the Kamaauwai is entitled to as a prescriptive right. The weight of
The original purpose of these water courses was to supply kalo patches, and the intention of the konohiki must have been to give all the kalo lands on this Ahupuaa rights of water at all times when needed. Kalaniauwai has no priority of supply over Kamaauwai and the mill water course, because it was situated above them on the stream, and neither has Kamaauwai superior rights to the mill water course for the same reason ; but all are entitled to their usual flow. The weight of evidence is that no more water flowed in the Kamaauwai at the time complained of than formerly. Witnesses . have testified to this fact having existed for more than twenty years; therefore complainants have not sustained the allegations of an illegal diversion. The defendant has not sustained his answer on this, that his lands, called Kaluapuhi and Kekipi, were entitled to water, either by grant or prescription ; but I am of opinion that he had a right to transfer the water from'his kalo lands adjacent to these lands, if by doing so he did no injury to other persons. The complainants have not sustained the allegation that it has done so to them. It is only changing the place of using the water, and they had no right to complain if it worked no injury to them. The defendant is not obliged to keep the water on his kalo that it might filter through these patches and flow over the road on to the land of complainants below.
The change in the place of the water course on his own land is justified on the same principles. These changes of the ditches, or of the watér, depend upon the question whether injury is inflicted on others. The complainants have not sustained the allegation of injury.
These are my views of the rights of the parties. To admeasure the quantity of water to which the Kamaauwai is entitled is not a difficult matter, and for many years, at least, it is very evident that those interested have very amicably adjusted the same. These parties, who are very intelligent men, can easily
Injunctions are not awarded by Courts of Equity, for the infringement of even doubtful rights, until they have been established at law, and therefore I cannot certainly in this case issue an injunction as prayed for. Still as there was evidently on the minds of both parties mistaken ideas of their rights, which were very honestly entertained, and which this investigation will aid, I trust, in correcting, I shall dismiss the application, and each party must pay the costs incurred by the same.