
    SUPREME COURT—IN BANCO.
    JULY TERM—1882.
    
      .Tucíd, O. J., MóQully and Austin, J.Jr
    
    Wong Kim et al. vs. Kioula et al.
    ON APPEAL EROM THE COMMISSIONERS OE WATER RIGHTS,
    A STONE DAM was built by defendant across a natural stream to turn the water, to which they were entitled by prescription, on to. their land. The plaintiffs were entitled to water from another source and only to such water from this stream as escaped through and under the. old dam of defendants.
    The Court declined to order the dam to be removed, inasmuch- as the same quantity of water escaped through the dam as formerly.
   Opinion of the Court by

Judd, C. J.

The plaintiffs complained before the Commissioners of Water Rights, that the defendants had by the erection of a stone dam across a natural stream at Kamoiliili, Honolulu, Oahu, deprived them (the plaintiffs) of the proper flow of water to which they had a right by prescription and prayed that defendants be ordered tO' remove the obstruction. A majority of the-Commissioners found in favor of the-defendants and the case was appealed to this Court. The testimony taken before the Commissioners was read, and a number of additional witnesses examined, and two of the-Justices of this Court have examined the locus in quo.

It appears that the defendants- have- built u.p with cement and stone a dam across the Palolo- Valley stream, which at this point is called the “ Pahoa stream,” from its running through the land of that name. This dam took the- place of one of loose stones on the same spot, which turned the water from the stream' into an artificial channel or auwai leading- to defendants’ land Kaluaolohe-. This land receives its only supply of water from this source and has enjoyed the same-from aucient times. But little water comes from Palolo Valley proper during the principal part of the year, but when heavy rains occur, freshets swell the stream, to a torrent, which, however, quickly subsides. The steady supply of water in this stream comes from springs in the land called Kalaepohaku, which empties into this stream above and somewhat to the north of this dam.

The plaintiffs’ land has its main supply of water from the Xanewai springs and whatever remains of the Manoa Valley stream. This water empties into the Pahoa stream a few feet below the dam, the subject of this controversy.

Prom all the testimony we are of the opinion that the plaintiffs are not, as claimed by them entitled as a right to one-half of the water in the Pahoa stream which comes to the dam, but only to what water may escape under or through the dam, and this bears a very inconsiderable proportion to the water from the Xanewai springs which is their main dependence. Before the rebuilding complained of this must have been a varying quantity. For the evidence is that the dam had to be- rebuilt of stone and sods whenever washed away by freshets, and these- occurred frequently. It is not at all likely that a rucie structure of this kind would be rebuilt twice exactly alike.

E. M. Hatch for plaintiffs.

"W. R. Castle for defendants:

Honolulu, August 15, 1882.

The present clam does not turn all the water into defendants’ ditch. It seems to us it is established by the weight of the testimony, that about as much water escapes now and runs to plaintiffs’ land as was wont before the present dam was built.

The plaintiffs cannot complain that this dam’ prevents the-flow to them of freshet water, for it is clear that the dam is low enough to have- freshet water pass over it.

It is certainly a convenience to-the-parties to have a cemented dam. It is more durable and less likely to be tampered with.

We see no reason why it should be removed, as its existence does not impair or interfere with the rights which the plaintiff's have to the surplus water.

The judgment of the Court is for the- defendants.  