Nin v. City of Honolulu

• Decision Date: 06 April 1935
• Docket Number: No. 2198.,2198.
• Citation: 33 Haw. 379
• Parties: WONG NIN v. THE CITY AND COUNTY OF HONOLULU.
• Court: Hawaii Supreme Court

33 Haw. 379

WONG NIN

v.THE CITY AND COUNTY OF HONOLULU.

No. 2198.

Supreme Court of the Territory of Hawai‘i.

Argued March 20, 1935.

Decided April 6, 1935.

RESERVED QUESTION FROM CIRCUIT COURT FIRST CIRCUIT. HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

Revival by statute of a right of action already barred by limitations is an extreme exercise of legislative power which will not be deducted from words of doubtful meaning.

The word “valid” means having legal strength or force, something having legal efficiency. “Legal” means conforming to law, according to law, required or permitted by law, not forbidden or discountenanced by law. The word also means good and effectual in law, one which the party asserting it may enforce by action or some proceeding at law or in equity.

A claim for damages which is barred by the statute of limitations is not a legal claim.

The City and County of Honolulu is a subdivision of the Territory. The board of water supply is not. Its status is that of a board or bureau.

A. G. M. Robertson ( Robertson & Castle on the brief) for plaintiff.

G. R. Corbett, Deputy City and County Attorney (also on the briefs), for defendant.

COKE, C. J., BANKS AND PARSONS, JJ.

OPINION OF THE COURT BY COKE, C. J.

The plaintiff, Wong Nin, on March 11, 1932, instituted in the circuit court of the first judicial circuit his action against the defendant, the City and County of Honolulu, for the recovery of damages caused by the alleged wrongful diversion of water appurtenant to the land of plaintiff located in Manoa Valley, Honolulu. Later on plaintiff filed an amended declaration to which defendant interposed a demurrer and the judge of the circuit court has reserved for our consideration the single question, to wit: “Should defendant's demurrer to plaintiff's amended complaint be sustained on all or any of the grounds set forth therein?”

The salient averments of the complaint as amended are that the plaintiff was the owner of a tract of land in Manoa Valley, containing 15.90 acres, title to a portion thereof containing 2.85 acres having been conveyed away by plaintiff in August, 1929. There is a surface–flowing stream having its source at a waterhead called Waiakeakua, in upper Manoa Valley and running through the valley toward the sea, known as East Manoa Stream. A ditch or auwai taps the stream at a point below the waterhead. From the water flowing through the auwai plaintiff was entitled to have water to irrigate his taro lands above described; that in the latter part of the year 1923 or the early part of the year 1924 the defendant, against the vested rights of plaintiff, by means of a pipe line tapped the stream above the source of the auwai and diverted the water of the stream from the auwai; that by reason of such diversion of water by defendant plaintiff's lands have been deprived of water which was appurtenant to them and the crops of taro growing thereon at the time of the diversion were badly injured and partly ruined and that by reason of the continuance of such diversion by defendant and the consequent lack of water flowing through the auwai plaintiff has been unable to raise taro on his land. For the injury to his crop growing at the time the water was first diverted plaintiff claims damages in the sum of $16,915 and because of the continued diversion of water plaintiff has been further damaged in the sum of $16,778.39. Plaintiff also alleges that by Act 194, L. 1931, an appropriation for the payment of plaintiff's claim was made upon its validity being established in a court of competent jurisdiction.

The reserved question is comprehensive in scope and presents for our consideration all of the numerous grounds of defendant's demurrer. The issues raised by the demurrer have been summarized by defendant's counsel as follows: (1) Plaintiff's claim is barred in whole or in part by the statute of limitations. (2) The amended complaint does not set forth facts sufficient to fairly apprise the defendant of what it would be required to meet on a trial of the cause. (3) The City and County of Honolulu is not the proper defendant. (a) If the City and County of Honolulu is the proper party defendant the allegations of the amended complaint are insufficient in that it does not appear therefrom that written notice of the injury and damage was given as required by section 1833, R. L. 1925.

The averments of damages, although incorporated in a single paragraph, in fact present two causes of action, the first being for the injury to or partial destruction of plaintiff's crop of taro growing on his premises in the latter part of 1923 or the early part of 1924 by the wrongful diversion by defendant of water appurtenant to plaintiff's land and, second, the subsequent damage to plaintiff caused by the diversion of water from plaintiff's property by defendant to the date of the institution of plaintiff's cause of action on March 11, 1932. The statute of limitations which defendant pleads in bar of plaintiff's right to maintain his action is section 2645, R. L. 1925, which reads: “Actions for the recovery of compensation for damages or injury to persons or property must be instituted within two years after the cause of action accrued, and not after.” It is apparent that plaintiff's first cause of action is completely barred by the above statute unless as claimed by plaintiff the legislature of the Territory has waived the bar of the statute and thus revived the claim. Act 194, L. 1931, is as follows: “Section 1. The sum of forty–nine thousand six hundred forty and 45/100 dollars ($49,640.45) is hereby appropriated out of any moneys in the treasury of the Territory of Hawaii not otherwise appropriated, for the purpose of paying any legally adjudicated claims of Wong Nin for and on account of loss and damages sustained by him to his taro lands and growing taro crop thereon, and the deprivation of use of said taro lands, due to diversion of water by the government of the Territory of Hawaii, and/or any subdivision thereof, from the waterhead known as ‘Waiakekua’ in Manoa Valley, City and County of Honolulu. Section 2. Any claim presented by the said Wong Nin shall not be deemed a legally adjudicated claim within the contemplation of Section 1 unless it shall be found to be a valid legal claim by a court of competent jurisdiction in a final judgment against the Territory of Hawaii and/or any subdivision thereof. Upon presentation to the auditor of the Territory of a certified copy of such final judgment the sum hereby appropriated shall be paid to the extent of said judgment upon a warrant duly issued by the said auditor of the Territory. Upon payment of the sum here appropriated, or any part thereof, the treasurer of the Territory shall, in fixing the next tax rate for the City and County of Honolulu, add to the amount to be raised thereby the said sum, which amount, when collected, shall be paid into the general fund as a reimbursement.” Act 11, 2d Sp. S. L. 1932, reads: “Section 1 of Act 194 of the Session Laws of Hawaii 1931, is hereby amended by deleting from the first and second lines thereof the words and figures ‘forty–nine thousand six hundred forty and 45/100 dollars ($49,640.45)’ and inserting in lieu thereof the words and figures ‘thirty–three thousand six hundred ninety–three and 39/100 dollars ($33,693.39).’ ” The only effect of the amendment was to reduce the amount of the appropriation made available for the purposes specified in the original Act.

The legislature by the Act as amended, plaintiff urges, removed the bar of the statute from his claim. He argues that if the legislature did not intend to waive the statute the appropriation of money to pay a claim which could be defeated by the mere interposition of a plea in bar was a vain and useless gesture. Defendant's answer is that what the legislature intended to do and...