Medeiros v. Koloa Sugar Co.

• Decision Date: 26 March 1926
• Docket Number: No. 1628.,1628.
• Citation: 29 Haw. 43
• Parties: LUIZ MEDEIROS, ALSO KNOWN AS LOUIS DE MEDEIROS, v. THE KOLOA SUGAR COMPANY, A CORPORATION.
• Court: Hawaii Supreme Court

29 Haw. 43

LUIZ MEDEIROS, ALSO KNOWN AS LOUIS DE MEDEIROS,

v.THE KOLOA SUGAR COMPANY, A CORPORATION.

No. 1628.

Supreme Court of the Territory of Hawai‘i.

Submitted March 5, 1926.

Decided March 26, 1926.

ERROR TO CIRCUIT COURT FIFTH CIRCUIT. HON. W. C. ACHI, JR., JUDGE.

Syllabus by the Court

The owner of an easement, acquired by grant, consisting of a right of way for a ditch over the land of another, cannot lawfully, without the consent of the grantor, substitute a flume for the ditch, even though the flume imposes a lesser burden upon the servient estate.

Ejectment lies to recover land of the plaintiff which is subject to an easement in favor of the defendant, when the defendant is occupying the land in an unlawful and unauthorized manner.

O. P. Soares for plaintiff in error.

P. L. Rice for defendant in error.

PERRY, C. J., LINDSAY AND BANKS, JJ.

OPINION OF THE COURT BY PERRY, C. J.

This is an action of ejectment, tried by the court without the intervention of a jury. Undisputed evidence was introduced showing that the land described in the declaration was granted by R. P. 7957 in confirmation of L. C. A. 6309 to Kapuniai and was conveyed by the patentee and his wife to the plaintiff. It is not now disputed that the plaintiff made out a prima facie case. On behalf of the defendant it was shown by undisputed evidence that the plaintiff for a valuable consideration granted to one Hans Isenberg a right of way, the portion of the deed referring to this subject reading as follows: “For the same consideration as aforesaid, I do hereby give, grant, bargain, sell and convey unto the said Hans Isenberg a right of way for the purpose of conducting water over and through that certain piece of land situate in Koloa aforesaid, and more particularly described in L. C. A. 6309 to Kapuniai, the same being Apana 2, containing an area of 20 acres and 1 rood. The right of way to be used for a ditch, to measure eight (8) feet wide, with sufficient room for bracing or embankment” (the words “either” and “a flume or” and the ink-line drawn through them are reproduced as in the original deed). The plaintiff admitted at the trial “that by proper conveyance the title which Hans Isenberg acquired from Louis Medeiros” (the plaintiff) “under the terms of this deed with reference to the land described in the petition is now in the Koloa Sugar Company, the defendant in this case.” It is not now disputed that this grant relates to a right of way over the land described in the declaration.

By undisputed evidence the plaintiff further established the fact that prior to the commencement of this action the defendant, the Koloa Sugar Company, had erected a flume over and across the land sued for and refused to comply with plaintiff's demand that the flume be removed; and that at the time of the institution of the action the defendant was still maintaining the flume across the plaintiff's land. There was no evidence of the maintenance by the defendant of any ditch on or across the plaintiff's land. The trial court rendered judgment for the defendant, based upon the theory that the maintenance of a flume was authorized and justified by the grant above mentioned.

It is established beyond doubt in this jurisdiction that an easement, whether acquired by grant or by prescription, can only be enjoyed and continued for the purposes and in the manner specified in the grant or in which it was used while the right was being acquired by prescription. “The law is well settled that when one has acquired, either by express grant or by prescription, an easement in the land of another, he may not substantially alter the mode of using it without the consent, express or implied, of the owner of the servient estate; and where, as in this case, the easement is a right to maintain a ditch or watercourse, the owner of the dominant estate may not substantially change the direction or location of such ditch or watercourse without such consent.” Scharsch v. Kilauea Sugar Co., 13 Haw. 232, 236. This statement of the law was approved and followed in O. R. & L. Co. v. Armstrong, 18 Haw. 258, 261. “This easement, if established, could only be continued in the manner and to the extent in which it was acquired. A right to a footpath along the border of a kalo patch, if it be established by long continuous and adverse use, does not confer the right to a road sufficiently wide and convenient for carriages.” Malupo v. Bush, 4 Haw. 79, 80. “The grantor has the right to limit his grant in any way he chooses and the grantee takes the way subject to all the restrictions the grantor has imposed and cannot go beyond them without becoming a trespasser.” French v. Marstin, 24 N. H. 440, 449. See also Pico v. Richardson, 2 Haw. 307; and Allen v. San Jose Land & Water Co., 15 L. R. A. (Cal.) 93.

While both a ditch and a flume are ordinarily used for the diversion of water, the two are essentially different in their nature and in the burden which they constitute upon the servient estate. Which of the two is the lesser burden to the servient owner need not be considered, for even if a flume is properly to be regarded as the lesser burden that fact is immaterial in determining the rights of the parties. O. R. & L. Co. v. Armstrong, supra. “No one has a right to compel another to have his property improved in a particular manner. It is as illegal to force him to receive a benefit as to submit to an injury.” Merritt v. Parker, 1 N. J. L. 460, 466;Allen v. San Jose Land & Water Co., supra. The grantee of a right of way for a ditch cannot at his will substitute a flume and justify under the grant.

The deed under which the defendant seeks to justify specifically...