
    HEEIA AGRICULTURAL COMPANY, LIMITED, vs. WILLIAM HENRY.
    Appeal from Commissioner of Water Rights.
    Hearing, March 7, 1892.
    Decision, May 25, 1892.
    Judd, C.J., Bickeeton and Dole, JJ.
    Water for irrigation purposes was diverted by the lessee of certain kuleanas from the kuleanas to Ms other land during the continuance of the lease.
    Held, this user of water was not adverse to the owner of the kuleanas, and therefore a claim of title to the water by prescription fails.
   Opinion of the Court, by

Judd, C.J.

The plaintiff, a corporation, brought its complaint before the Commissioner of Private Ways and Water Rights for Koolaupoko, Oahu, alleging that defendant had, without right, taken and diverted the water to which plaintiff’s land at Keaahala was entitled by ancient right, the water coming from springs in Keaahala, and entirely depriving plaintiff of its water right, except the water right to Apaña 3 of the kuleana of Kuiaia, and to Apana 1 of the kuleana of Kapunaai.

The Commissioner heard the evidence, and decided adversely to plaintiff, who now appeals to this Court.

From the evidence sent up, it appears that water comes from a spring in the land of Keaahala, called Kahuiki, and runs in an ancient ditch supplying the kuleanas of Kuiaia (Apaña 3) and of Kapunaai (Apana 1), which are also called “Nakiana’s kuleana,” and then ran down to lands entitled to water below these kuleanas, the fall being quite rapid. In 1868, Mr. Coolidge, the lessee of Keaahala, extended the ditch westward, and led the water to a reservoir. In 1874 a mill was erected, and the reservoir was filled nightly, and the water run off during the day to a water wheel which turned Coolidge’s sugar mill. In 1879, or thereabouts, the use of this mill was discontinued, and it is claimed by defendant that the reservoir is used by plaintiff for general purposes of irrigation, and supplied with water from another source, in Heeia. Plaintiff claims that it used the water without disturbance until defendant diverted it, in September, -1890. Owing to the contour of the land, it would be impossible to turn the water back from below the reservoir to the kalo lands below the Nakiana kuleanas.

G. Brown, for plaintiff.

J. A. Magoon, for defendant.

We deem it to be well settled law in this Kingdom that the right to use water for irrigation purposes can be acquired by adverse and continuous use for twenty years. It is not disputed that the Nakiana kuleanas, and other kuleanas in which were kalo patches below these, had acquired the right to sufficient water for their needs from the Kahuiki spring. Now, to justify plaintiff’s claim, it must show that it had acquired the right to use this water by a user adverse and continuous for twenty years. We find it in the evidence that Mr. Coolidge leased the Nakiana kuleanas when he dug the ditch, in 1868, to the reservoir. The inference is strong that it was the water which these kuleanas had acquired the right to which he led on through the new ditch. It is in evidence that William Henry is now the lessee of the Nakiana kuleanass that he took them when Coolidge’s lease expired, in 1881. Henry (defendant) says he put the land into rice in 1885, and used the Kahuiki water on it, and that the plaintiff has not used this water since.

It seems, therefore, to be clear that the plaintiff, having begun the use of the water in dispute as the lessee of Najdana’s kuleanas, its use was not adverse during the time the lease was in existence, and a sufficient time has not elapsed since to complete a title by prescription. We therefore sustain the judgment of the Commissioner, dismissing the complaint.  