
    CHUN LAI v. MANG YOUNG, GIN TAT, KALUNA, WONG CHEONG, KEANAHUNA, MIKELA, PUU, KUPIHEA, LULIA, VIKOLI and MANUEL FRANKS.
    Appeal from CommissioneR oe WateR Rights, District of Honolulu-
    Submitted December 26, 1893.
    Decided October 23, 1895.
    Judd, C.J., Bicicerton and Frear, JJ.
    Decision of the Commissioner on a question of water rights reversed on the evidence.
    A mere continuance is not a hearing for the purpose of taxation of costs under Chap. XXVI, Sec. 5, Laws of 1888.
   OPINION OF THE COURT BY

FREAR, J.

This is a controversy respecting tbe location of tbe dams of tbe Palilcea and Laimi auwais and tbe relative amounts of water which these auwais are entitled to take from tbe Nuuanu stream. These auwais tap tbe stream on opposite sides, and until recently tbe Laimi dam was a short distance below tbe Palikea dam, but not long before this controversy arose, tbe Laimi anwai was extended np along tbe bank of tbe stream so as to take water from tbe Palikea dam.

Tbe plaintiff (whose land is watered by means of tbe Laimi anwai) contends tbat eacb anwai is entitled to one-balf of tbe water in tbe stream, tbat tbe point of division is tbe Palikea dam, and tbat it is immaterial wbetber tbe water to wbicb tbe Laimi anwai is entitled is brongbt down part way in tbe natural bed of tbe stream and then turned into tbe anwai, as formerly, or brongbt down all tbe way in an artificial ditcb. Tbe defendants (whose lands are watered by tbe Palikea anwai and who filled up tbe extension of tbe Laimi anwai as soon as it was made) contend tbat their anwai is entitled to take all tbe water tbat its loose stone dam will turn into it, and tbat tbe Laimi auwai is entitled only to tbe overflow and seepage from tbe Palikea dam.

Tbe commissioner awarded one-third of tbe stream to tbe Laimi, and two-thirds to tbe Palikea anwai. This finding is not supported by tbe evidence.

Tbe evidence shows tbat tbe Palikea dam was always made entirely across tbe stream and tbat there never was an open run as found by tbe commissioner; also tbat while formerly there was generally a flow over as well as seepage through tbe Palikea dam sufficient to' fill tbe Laimi auwai, yet tbat then at times, because of drought, and more recently much of tbe time, because of tbe action of tbe Government in taking water at a higher point, there has been only seepage through and no flow over tbe Palikea dam, and tbat notwithstanding tbe diminished quantity of water, tbe amount flowing in tbe Palikea auwai does not appear to have ever been diminished for tbe benefit of tbe Laimi auwai. Tbe evidence also seems to show tbat it has been customary all along tbe ÜSTuuanu stream for eacb auwai to take its accustomed amount of water even if at times requiring all tbe water in tbe stream, without reference to lower auwais, each auwai depending chiefly upon springs between its dam and tbe dam next above. Tbe decision of the commissioner was based in part upon, tbe comparative areas of tbe lands irrigated by tbe auwais, but tbe evidence on tbis point, tbougb not very definite would seem to indicate tbat tbe Pabbea auwai irrigates four or five times as mucb land as tbe Laimi auwai.

W. G. AcM and J. M. Davidson, for plaintiff.

J. A. Magoon, 8. K. Kane and J. K. Kaulia, for defendants.

It seems to us tbat tbe Palibea auwai is entitled to tbe amount of water which bas usually been turned into it by its loose stone dam and tbat tbe Laimi auwai is entitled ■ only to tbe overflow and seepage.

Tbe commissioner taxed costs for a continuance as for a bearing. Tbe mere sitting and adjournment to another day is not a “day’s bearing” witbin tbe meaning of tbe statute. (Laws of 1888, Obap. XXYI, Sec. 5.)

Tbe decision of tbe commissioner is reversed, and tbe complaint dismissed, costs to be paid by tbe plaintiff.  