13 Haw. 232 | Haw. | 1901
OPINION OF THE COURT BY
In this action, the plaintiff claims of tlie defendant the sum of $5550. as damages for the alleged wrongful diversion by ■defendant of certain water to tlie use of which the plaintiff ■claims to be entitled, and the further sum of $2000. as damages for the alleged wrongful discharge of plaintiff by defendant from its employ. The cause was tried before a jury, and a verdict rendered for tbe plaintiff for tlie sum of $3106. A motion for a new trial was overruled, pro forma, by tbe Court. The bill sets forth a number of exceptions to rulings made at the trial, to the charge of the court as given, to the refusal to give certain instructions requested by the defendant, to the giving of certain instructions requested by the plaintiff, to the verdict on the ground that it is excessive and contrary to law and
Evidence was adduced at the trial tending to show that the plaintiff is, and has been since 1882, the owner in fee simple of certain land, about five acres in area, situate at Pilaa in the District of Hanalei, Kauai, bordering on a stream and surrounded on all sides by land of the defendant corporation; that he and his predecessors in interest for a period of thirty years or mors: next preceding the commencement of the action, used water out of the stream for domestic and agricultural purposes on his said land, said water flowing out of said stream through an artificial ditch; and that this ditch at the point where it tapped the stream and for some distance therefrom was on the defendant’s land. There was also evidence tending to show that the defendant, by means of a dam constructed across the stream at a point further mauka and of a new artificial ditch leading to some of the defendant’s canefields, diverted the water of the stream and deprived the plaintiff of the use of the water which he had theretofore enjoyed.
Plaintiff’s own evidence is that such deprivation occurred from Ifarch, 1895, until some time in December of the same year and from June 14 or 15, 1897, until the date of the commencement of the action, November 21, 1898, periods of noi more than two and one-third years in all; and that the total area of taro and rice land which he was unable to cultivate by reason of the defendant’s acts was three acres. Other evidence shows that an acre of taro, of the poorest marketable yield and grade, was worth, during the times stated, $100., of average yield and grade, $200., and of the- best yield and grade, $300., these apparently being gross values. No evidence was introduced tending to show the cost of growing taro, per acre.
There was, further, evidence tending to show that during the periods already referred to the plaintiff was compelled to purchase taro for domestic use at' a maximum cost of $3.25 per week, and to carry water for such use from a spring at a distance from his residence of about 75 or 100 feet more than the ditch from which he formerly obtained water for the same purposes.
Assuming, for the purposes of the decision of this branch of the case, that the jury was justified in finding from the evidence that the plaintiff in 1882 made no- substantial change in the location of that portion of his ditch which was nearest the stream and on the defendant’s land, and in finding that he had acquired a prescriptive right to conduct the water through that ditch over the defendant’s land, or that a change, if made, was with the defendant’s consent, express or implied, still we are of the opinion that the verdict cannot be sustained for the reason that the amount awarded is excessive and unsupported by the evidence most favorable to the plaintiff. The evidence permits of three methods of computing the plaintiff’s loss, by ascertaining (a) the cost for the time stated of the taro purchased by the plaintiff, (b) the difference in the rental value of the land with and without water as shown by the lease, and (c) the proceeds derivable from the sale of taro grown on the premises, per acre. It is obvious that the results of these three methods cannot properly be added together and the grand total awarded to the plaintiff, for he cannot consume his taro at home and have it for purjDoses of sale, nor can he cultivate and sell the taro and at the same time rent the land for the growing of rice. The amount expended by plaintiff for taro during the 2?¡ years was not more than $398.; the total rent due from the lessees for the leased portion
Disregarding the fact that these calculations are made without any deductions for the cost of raising taro, still, on the view most favorable for the plaintiff, the evidence thus far considered can account for only $1530. or, at the most, $2100., of the sum awarded in the verdict. It is to be observed that these figures are most liberal to the plaintiff, for the evidence tends to show that his land is inferior and below the average in quality. Moreover, while the land is here credited with the ability to produce $200. and $300. per acre per year, the fact remains that one and three-fourths acres of it, including one and one-half acres of the taro land, were leased by the plaintiff for a term of ten years for a total rent of sixty dollars per year or not more than forty dollars per acre per year for the wet land.
The trial court instructed the jury that no recovery could be had in this action under the third count of the declaration, i. e., that with reference to the alleged wrongful discharge of plaintiff from defendant’s employ. Upon the evidence, only one other possible element of damage is suggested, to wit, the additional cost and inconvenience of obtaining water for domestic use from the spring instead of from the ditch. No evidence whatever was adduced from which the jury could find what such cost was, or that there was any additional cost. The evidence was at least vague on the subject of inconvenience and certainly not such as to support an award of either $1576. or $1006.
A new trial is ordered.