
    CLIO KALEIOPU v. ELIZABETH BOOTH and CHARLES W. BOOTH, her husband.
    Appeal ERom COMMISSIONER oe Water Rights, District op Honolulu.
    Submitted July 3, 1896.
    Decided October 19, 1896.
    Judd, C.J., Frear AND Whiting, JJ.
    The Commissioner allowed the plaintiff all the water in a ditch over defendant’s land for two hours each day. There feeing no evidence on which to fease the decision as to the extent of the right, and not a clear preponderance of evidence as to the existence of the right, the decision is reversed and the case remitted toi the Commissioner for further evidence and decision.
   OPINION OP THE COURT BY

PREAR, J.

The plaintiff and tbe principal defendant, Elizabeth Booth, are the owners respectively of certain lands situated between the hlanoa and Palolo streams at Waikild-waena, in Honolulu. These lands adjoin each other, the defendant’s being above the plaintiff’s. The question in controversy is whether the plaintiff’s land is entitled to water from the Manoa stream through a ditch over the defendant’s land.

There is a spring, called Kalaepohaku, near the boundary line between these lands, from which there was formerly a considerable flow of water, but which (and this is also the case with the Kanewai spring higher up whose water formerly flowed into tbe ditch above mentioned) has been nearly dry for some years, in consequence, probably, of the sinking of artesian wells near by. From the testimony of the witnesses as a whole and from the lay of the land and the location of the spring, there can be little doubt that the greater portion of the plaintiff’s land, probably all but the few higher taro patches nearest the Manoa stream and adjoining the defendant’s land, depended upon this spring for water. The question is, therefore, practically whether the remainder of the land, these few patches, also depended upon the Kalaepohaku spring or was entitled to water from the Manoa stream.

The lay of the land would seem to indicate that these patches would naturally have obtained their water from the klanoa stream, and yet it appears by measurement that they could have been irrigated by the Kalaepohaku water. The testimony of the witnesses for the plaintiff is to the effect that her land was always entitled to some water through this ditch, without however specifying the amount, either by quantity or by time; also that this water flowed to her land from the defendant’s through a regular channel, and that her land depended only in part upon the Kalaepohaku spring. On the other hand, the testimony of the witnesses for the defendant is to the effect that the water in the ditch from the Mhnoa stream and Kanewai spring belonged to her land and the Kanewai land alone, that these two lands alternated in the use of the water, each taking the entire water for a day and a night at a time, and that, although some of the water has in the past flowed on to the plaintiff’s land, this was only occasionally, when there was a superabundance of water, the overflow of which would naturally flow down hill to plaintiff’s land, that this overflow was from patch to patch and not through any well defined channel, and was merely a surplus due to heavy ra.ins and not a proportion belonging to or taken by the plaintiff as of right; also that there is now less water in the ditch than there formerly was, owing to lessened rainfall and the drying of the Kanewai spring, in consequence of which she baa been obliged to contract tbe cultivation of ber own land; and sbe contends that tbe plaintiff’s lack of water is not dne to ber (defendant’s) taking more or a larger proportion of water than sbe is entitled to, but is due solely to tbe diminished supply of water — from wbicb sbe and others dependent on tbe Manoa and Kanewai water have to suffer as well as tbe plaintiff who is dependent on tbe Kalaepobaku water.

J. M. Kcmeakua, for plaintiff.

W. R. Gcistle, for defendant.

Tbe Commissioner found that tbe plaintiff’s land was entitled in part (presumably to tbe extent of tbe few patches above mentioned) to water from tbe Manoa stream and awarded to ber all tbe water in tbe ditch for two hours each day, namely, from 4 to 6 o’clock, a. m.

"Whether tbe plaintiff is entitled to any water from tbe Manoa stream, is not very clear. If this were tbe only question open on tbe appeal, tbe decision of tbe Commissioner should be allowed to stand, for there is not a very clear preponderance of evidence either way, and sbe bad advantages not possessed by tbe appellate court in that sbe saw and beard tbe witnesses. But there is clearly no evidence on wbicb to base tbe firirirng as to tbe amount of water to wbicb tbe plaintiff is entitled, if any, and tbe decision should at least be reversed on this point and tbe case be remitted to tbe Commissioner for further evidence. Under these circumstances, and since such further evidence as may be introduced on tbe question of tbe extent of tbe right, if any, may throw further light upon tbe question of tbe existence of tbe right also, we think it more just that tbe decision of tbe Commissioner be reversed in toto and that tbe case be remitted to ber for further evidence and decision, and it is so ordered.  