Dissenting Opinion of
Dole, J.The first bill avers that “the said auwai and water-right was at the time of making said first mentioned lease and ever since has been and now is appurtenant to the said land, and that the said auwai is an ancient ditch, and the plaintiffs were at the time of making said first mentioned lease and ever since have been and now are well entitled to the use of the same, and of the water that flows therein, by virtue of their said first mentioned lease.”
The opinion upon this bill says, “the evidence as to this auwai being ancient, and of the right of user by the occupiers of the land comprised in the first lease, is contradictory, and is not, to my mind, sufficient to support the claim made by the bill in that respect,” thus showing that the first bill was dismissed upon the question whether the auwai was an ancient one, and presumably whether the water flowing through it has be*310come appurtenant to the land in question through long usage. The opinion, in dismissing the bill, uses these words: “ The bill must be dismissed without prejudice to the right of the plaintiffs to file a fresh bill.”
The second bill avers, “which said water-course, together with the water right belonging thereto, your orators, at the time of taking the lease, were informed by their said lessors, was demised unto them as appurtenant to the demised premises.”
The banco decision upon this bill says, “there is no allegation in the bill that this Charman kuleana with the water-right was made by the defendants parcel of the demised premises, or that the water was appurtenant thereto.”
It would appear from this that the decision did overlook the averment of the second bill above quoted.
As a matter of fact, the land through which the water-course passed before reaching the land in question was in the possession of one of the lessors at the date of the lease to the plaintiffs, which circumstance would give some support to the allegation that the lessors informed the plaintiffs at the date of the lease that the water-course and water-right were demised to them as appurtenant to the demised premises, as showing that they were in a position to make such assurance. ■
Kent says, 4th Com., 468, “A conduit conveying water to the . lands sold from another part of the lands of the grantor, will pass as being necessary or quasi-appendant thereto.”
It seems to me that whereas the decision on the first bill disposed only of the question of an ancient water-right appurtenant to the lands in question, and dismissed the bill without prejudice to the right of the plaintiffs to bring a new bill, and the second bill does allege an assurance of the lessors that the watercourse and water-right are demised as appurtenant to the land, they or one of them being at the time the holder of the land through which the water-course passed, and the Court in banco overlooking in its decision this averment, as it appears to me, the motion for re-argument- should be granted.