Peck v. Bailey

• Decision Date: 04 February 1867
• Citation: 8 Haw. 658
• Parties: SHERMAN PECK ET AL. v. EDWARD BAILEY.
• Court: Hawaii Supreme Court

8 Haw. 658

SHERMAN PECK ET AL. v. EDWARD BAILEY.

Supreme Court of Kingdom of Hawai'i.

February 4, 1867.

NOT HITHERTO REPORTED.

IN EQUITY.

Syllabus by the Court

An easement appurtenant to land will pass by a grant of the land, without mention being made of the easement.

A riparian proprietor has a right, as an incident to his estate, to use the water for irrigation and domestic purposes, provided he does not materially diminish the supply of water or render useless its application by others; but his riparian rights are subject to the prescriptive rights of others.

The owner of an Ahupuaa may apply the water belonging to it to what land he pleases, but upon his conveyance of portions of the Ahupuaa to several persons, each grantee, in the absence of an additional grant of water rights to any of them, will hold the right to all the water which the portion of land purchased by him had enjoyed from time immemorial; the grantee of the larger portion of the Ahupuaa has no superior rights as lord paramount.

A party who has acquired a prescriptive right to use a certain quantity of water in a certain ditch for certain purposes on a certain piece of land, may alter the course of the ditch and use the water for other purposes on another piece of land, provided the changes do not affect injuriously the rights of others.

No prescriptive right can be acquired to the overflow of water from adjacent lands, however long continued, where the overflow is merely by way of drainage and not in a regular water course or under a claim of right.

C. C Harris, R. H. Stanley, J. C. Farwell and J. W. H. Kauwahi for petitioners.

A. F Judd and W. C. Jones, for respondents.

BEFORE ALLEN, C.J.

The complainants in this bill allege that they are the owners of a sugar plantation and mill, situated on the Wailuku river on the Island of Maui, and that the said river continues its whole course through their plantation, and has so flowed from time immemorial, from which are two lateral water courses which supply water for the use of the said mill and plantation, and which they are entitled fully to enjoy. The complainants further allege that their title is derived almost entirely from the konohiki of the Ahupuaa of Wailuku, whom they allege had the right of lord paramount over the Wailuku river as an appurtenance to his Ahupuaa, and they allege that the defendant has no right of water in the said stream, except that which was allotted by the konohiki for the use of certain taro patches of defendant, which they aver was much less than the defendant has diverted to his use, and to the injury of complainants.

The complainants allege that the defendant has, by a dam and other means, illegally and wrongfully diverted the water of Wailuku river from their mill and premises, which has caused great interruption to the use of their mill and injury to their cane. The complainants further allege that the defendant has extended the water course, which supplied his kalo land, so that it watered kula land of defendant which never was and is not now entitled to water, and thereby has diverted a large quantity of water from its usual course, and which from time immemorial has had its flow to the mill and premises of complainants. The complainants pray that the defendant may be restrained by the injunction of this Court from making this illegal diversion of the water of the Wailuku river, as it has prevented the water flowing to the mill and premises of complainants in such regular quantities as they are entitled to, and to their great injury.

Defendant admits title to the land in occupancy of complainants, but denies their rights as lord paramount of Wailuku river, and claims that he has not used more water than he is entitled to by prescriptive right, immemorial usage, and the law of the Kingdom; that he has not dammed the Wailuku river any further than was necessary to make the usual diversion of water into the Kamaauwai. He admits that he has dried up some taro patches and transferred the water to another portion of his cane land, which he contends he had a legal right to do. He further alleges that the complainants have diverted the water from their own mill and premises by enlarging the ancient water course called Kalaniauwai, which had its head above the water courses which conducted water to the mill and premises of complainants, as well as the Kamaauwai, which water passed to the mill and lands of defendant.

The defendant alleges that complainants diverted this water, a large portion of which had always run in the Wailuku river, and used it for the irrigation of large quantities of cane land on the north side of the river, which is the opposite side from the mill and premises of complainants. The issue is substantially this, viz:

1st. The complainants claim the rights of lord paramount over the Wailuku river.

2nd. They allege that the defendant has wrongfully diverted from their mill and premises more water than he was legally entitled to by the Kamaauwai, to the great injury of their mill and cane.

3rd. They allege that by the extension of the Kamaauwai beyond its original and true terminus, the defendant has conveyed an undue quantity of water— far more than he was entitled on the twelve acres of kalo land, called Kapohakuokauhi— on to his kula land beyond, and also that he has illegally diverted this water from the kalo patches, as the surplus had always passed over the road, adjacent to which they were situated, and watered complainants' land below.

The title of the land held by both parties, the rights and privileges of which are called in question, is derived from the King, and from the award of the Land Commission, on which Royal Patents have issued, or which are entitled to the same on complying with the usual conditions. By the Act passed on the 7th day of June, 1848, by the King, in co-operation with the Nobles and Representatives, a division of the lands of the Kingdom was made, in which certain lands were declared to be the private lands of His Majesty Kamehameha III, to have and to hold, himself, his heirs, and successors forever, and said lands to be regulated and disposed of according to his royal will and pleasure, and subject only to the rights of tenants. The Ahupuaa of Wailuku was one of these lands. It is admitted that the water courses known as Kamaauwai, Kalaniauwai, and the mill water course so called, have been used from time immemorial and they were the entire property of the King subject to the rights of tenants. This property became by inheritance the property of Kamehameha IV., from whom the parties derive title to the greater part of the lands which have been referred to in the investigation of this case. These lands were conveyed, with all the privileges and appurtenances annexed to them by law, in the usual form of a warranty deed, and without any peculiar grants to either.

There can be no difference of opinion that the complainants were entitled to all the water rights which the lands had by prescription at the date of their title. By the deed, the water courses were conveyed and a right to the water accustomed to flow in them. The same principle applies to all the lands conveyed by the King, or awarded by the Land Commission. If any of the lands were entitled to water by immemorial usage, this right was iucluded in the conveyance as an appurtenance. An easement appurtenant to land will pass by a grant of the land, without mention being made of the easement or the appurtenances. But if lands had not such rights, and no additional grant of water rights was made, it certainly could take nothing by having been a portion of the Ahupuaa. It appears by the deed of the land of complainants, on the north side of the river, that the land although comprising several hundred acres is bounded by the river only by a small portion of it. How far this would affect its riparian rights, is not material in this case, for the reason that the right which it enjoys by the Kalaniauwai is far more than its riparian right— all riparian proprietors have taken this conveyance, subject to the rights of others enjoyed by prescription. So if a riparian proprietor should interfere with an ancient auwai, by which other lands had been watered from time immemorial, he would be liable in damages, because this was clearly an easement for the benefit of those lands through which the ancient water course extended. A sound distinction is recognized between the right to enjoy water in its natural state, and that which is created by artificial means. A riparian proprietor has the right to enjoy the benefits of a flow of water, as an incident to his estate, and he can use the water for irrigation, watering his cattle, and other domestic purposes, provided he does not materially diminish the supply of water or render useless its application by others. Washburn, in his 2 vol. Real Property, p. 65, says a right to interfere with the natural right to make use of water belonging to another, when it is connected with the occupation of lands, coustitutes an easement in favor of the latter, as the dominant estate. Such an easement may be acquired by grant, or by adverse enjoyment so long continued as to raise a legal presumption of a grant.

The complainants contend that they have the right of lord paramount to the Wailuku river. The grantor of a large portion of the complainants' land had the same right as his ancestor, who was the konohiki of this Ahupuaa, subject to the rights of tenants, which were afterwards confirmed by the Land Commission. These rights were certain taro patches and the water necessary for their cultivation. This was a limitation to the entire control of the river.

The grantor of complainants has conveyed portions of this...