23 Haw. 595 | Haw. | 1917
OPINION OF THE COURT BY
This is a suit which was brought before the circuit judge of the fourth circuit, sitting as water commissioner, by The Trustees of the Hilo Boarding School, a corporation, against the Territory of Hawaii and over 30 others for the adjudication and determination of a certain disputed water right claimed by the petitioner. Only the Térritory contested the case, and the matter is now before us on the Territory’s appeal from the decision of the commissioner. The appellant complains of certain rulings as to the admission of evidence which we deem it unnecessary to discuss since, under the view we take of the case, the decision of the commissioner ought to be affirmed upon all the evidence which went in without objection. After argument was had on the appeal the members of this court, accompanied by counsel, viewed the locus and examined the several points on the ground to which argument had been directed and attention was called.
The water right in question is claimed by the petitioner as an appurtenance of the land of Punahoa, situate in Hilo, Island of Hawaii, which was awarded to the American Board of Commissioners for Foreign Missions in 1849 by Land Commission Award 387, Part 4, Sec. 1. And the petitioner claims as the owner of a portion of the land of Puna-hoa; as grantee of certain owners of other portions thereof; and by adverse user for over twenty years as against the owners of other portions of the land, being the non-contest- ■ ing respondents in this case. The Territory concedes that a water right passed with the award of the land of Punahoa
The south branch of the Wailuku river, from which the water in question is taken, has its origin and flows its entire length on the government land of Piihonua. At and above the point of diversion, at an elevation above sea level of from 1040 to 1060 feet, there is a peculiar formation of lava rock constituting a chain of huge boulders extending up the bed of the stream. These boulders have been connected by a series of dams, seven in number, which were put in for the purpose and have the effect of collecting and retaining the water of the stream, or a portion of it, according to the volume of the total flow which varies from day to day, and taking it out at a point on the south bank of the stream whence it flows for some distance through what appears to be a small gulch or natural waterway and thence over and across Piihonua on to Punahoa through what is admittedly an, artificial ditch which eventually passes through the premises of the petitioner, in the town of Hilo, and may finally reach the sea. This is a very general description of the situation as it appears on the ground. There were two or three branches from the ditch in the town of Hilo, and the Territory contends that originally there was a branch immediately above the third Halai hill (Puuhonu) which carried a portion of the water over to the adjoining land of Ponahawai for the use of the occupants of that land, also that from a point at the base of the second Hálai hill a branch took a portion of the water to the lower part of the land of Piihonua. These claims are. disputed by the petitioner and there has been no water flowing in these branches for a long time. We think the facts need not be determined. The ultimate question which the commissioner had to decide was what quantity of water passed as appurtenant to
The commissioner examined and analyzed the testimony with care. We do not feel obliged to review it at length. It was entirely circumstantial so far as the ultimate question as to what quantity of water was flowing in the ditch at and before the date of the award of the land of Punahoa is concerned. The commissioner admitted, as this court must admit, that “it may be only roughly approximated, with a wide possibility of error.” We hold the rule to be, in- an appeal in a water controversy, that where a question of fact depends on conflicting testimony, the finding of the commissioner ought not to be disturbed if it is supported by sub
In 1899 a new lease was given to the electric light company in which it agreed to supply the boarding school with water for household purposes and power and light equivalent to ten horse power, and in about the year 1901 the company moved its plant to the north side of the Wailuku river and, since then, has been taking out water at "‘another point of diversion below; the intake of the ancient ditch. What effect that may have on the right of the petitioner to continue to take water from the stream through the old ditch, or the quantity which may be so taken, are questions which have not been raised in this case and have not been considered. Since the electric light company moved its plant it has not used the water of the ditch, and the dams and ditch have not been kept in the best of condition. The petitioner has, however, granted to other parties the right to use the water of the ditch for fluming and other-purposes.
The decision of the commissioner adjudicating the right of the petitioner to take and divert from the Wailuku stream at the intake of the ditch a maximum quantity of five million five hundred and ninety thousand gallons of water each twenty-four hours for use for power, irrigation and domestic purposes as an appurtenance of its premises at Punahoa, with the right to repair and maintain the dams in the stream and also the ditch in its course over and across the land of Piihonua, is affirmed.