Decision of
Chancellor Judd,Appealed From.
There are special difficulties met with in arriving at the facts of a business transaction between Chinese. They exist in the case before me, since the lessors of the plaintiffs have different interests involved and the plaintiffs are several individuals forming a partnership or hui, and various ones of its membership have taken part in transactions in dispute.
The object of the bill is to enjoin the defendants from bringing any action for rent on the lease acknowledged on the 25th of November, 1882, whereby the Un Wo Sang Company *740(plaintiffs) covenanted to pay $200 per annum to Alo (defendant) for the use of the water from the “ Charman Kuleana,” and to declare the defendant trustee of the said lease to the use of the plaintiffs, and to account for rentals previously paid under said lease. The defendant, together with Tong Chow, Tong Woa and Pac Kanah had, previous to this lease, executed a lease dated October 26, 1882, of the rice lands at Waipa, Hanalei, Kauai, to Kwai Hee and Gee Chun, who, together with Wong Uck, C. Ahong, C. Aka and C. Aho, now form the Un Wo Sang Company (plaintiffs) at the annual rental of $1350. The plaintiffs now claim that the demise of the premises, which are a rice plantation on which water for irrigating purposes is a constituent, carried with it to the plaintiffs the right to the water as an appurtenance of the demised premises; that the lease was made for purposes of cultivating rice, which depends on irrigation, and that the demised premises were irrigated by and from the water-course in controversy for some time before the lease was made; that the defendant Alo, being one of the plaintiffs’ lessors, had, at the date of the lease, power to grant the watercourse, he having taken a lease of it from Mr. Charman, the true date of which must be taken to be 1st November, 1881, and as Alo (defendant) did not reserve the water right in the general demise of the rice plantation, it passed in law to the plaintiffs as an actually used appurtenance of the demised estate.
The lease of the estate, which I shall call the first lease, was prepared and signed in Honolulu the same day the plaintiffs’ articles of copartnership were executed. The second lease (of the water right) was prepared and executed in Kauai, and Gee Chun alone signéd it on behalf of the IJn Wo Sang Company.
Kwai Hee, of the plaintiffs, says he was present on this land at Kauai when Alo (defendant) pointed it out to him and Gee Chun, and that Alo and Apakan (both of them lessors) said that the ditch belonged to the land. Apakan says that the previous company (the Han Tai), of which he, Alo and Asee were members, had used this water from the Charman ditch for six years, and only at the end, when Charman heard they were *741using it, that they paid for it $50 for the six years. Charman says when he heard the Chinamen were using his water he demanded $100 rent and got $80.
Alo (defendant) says he acquired the Charman kuleana while the Han Tai Company were in possession of the rice lands, and that the Han Tai Company paid him for the water-right as they had no (other) water; that he told Kwai Hee when looking over the land that it was his own water-right; and that Kwai Hee came to see him about the water-right for which he first asked $350, but at Asee’s solicitation he agreed to let the Un Wo Sang Company have it for $200, and that $150 of it was to be deducted from the $1600, the original rent agreed upon; and that Gee Chun signed the lease on Kauai. “ I said, the water is separate from the rice land. Kwai Hee was told this.”
The contradiction between Kwai Hee and Alo being so complete upon the question whether in the negotiations the water was to be separately considered or not, it is much to he regretted that Gee Chun, who was the resident manager of the plantation and signed the second lease himself, was not produced as a witness. I believe he is absent in China. At any rate it is not disputed that he signed the lease and deliberately bound the company of which he was by the article of copartnership manager for two years, to pay $200 a year for the water. He could not have understood, as Alo certainly did not, that the first lease, which demised the rice land which the remaining members of the Han Tai Company owned, carried with it, as appurtenant, the water right which Alo alone had the right to by lease from Charman. If the second lease had not been taken, the claim of plaintiffs could well be made that Alo’s joining in the conveyance (the first lease) passed the water-right as an appurtenance, it not being reserved in the lease — although I do not think it would strike one of this class that a lease of partnership property would carry with it the property of an individual member.
While not going to the extent of saying that the plaintiffs are estopped by the second lease, it seems to me to support Alo’s *742contention that the negotiations for the water-right were a part of the original transaction and were not folly settled until the manager Gee Chun and Alo had met again on the premises after the first lease was signed.
The law contended for by plaintiffs’ counsel, that the “ grantor conveys by his deed as an appurtenance whatever he has the power to grant, which is practically annexed to the granted premises at the time of the grant and is necessary to their enjoyment in the condition of the estate at the time” (Philbrick vs. Ewing, 97 Mass.), 133, is not controverted by defendants’ counsel. I think the law is well .settled as claimed by plaintiffs ; but having found that the two leases were one transaction, and that it was the understanding and intention of the parties that Alo should give a separate lease for his water-right and receive separate rent therefor, the rule of law above approved does not apply. It may be that this was not brought home sharply to Kwai Hee, so that when he returned home from China and ascertained that his firm were paying Alo $200 a year for the water, he repudiated it. If Gee Chun, the managing partner, had understood it as did Kwai Hee, he should not have taken the second lease.
The result most satisfactory to my mind is to hold that Alo’s version is .the truth, and therefore the bill must be dismissed.
Decision oe the Full Court by Preston, J. Dole, J., Dissenting.
The matters in issue in this case have been before the Court on several occasions.
On the 3d April last, the Court held that the question not covered by previous decisions, and to be decided in the present case, was the allegation in the bill that “ at the date of the said lease and for some time prior thereto, a certain water-course and water-right had been used and enjoyed by the said lessors as appurtenant and belonging to the premises demised under said lease, and always had been and now is of right belonging and appurtenant thereto.”
F. M. Hatch and A. S. Hartwell, for appellants. P. Neumann and Chas. L. Carter, for respondents.On the argument on appeal it was suggested to the Court that the statement in the opinion of the Chancellor, on which the decree appealed from was founded, “it is much to be regretted that Gee Chun, who was the resident manager of the plantation, and signed the second lease himself, was not produced as a witness,” was inaccurate, and that in fact he was examined on the hearing of the previous case before Mr. Justice Preston.
It was agreed that the evidence taken in two previous cases between the parties should be used before the Chancellor.
On referring to the records of such testimony, we find that Gee Chun was examined, but we are of opinion that such testimony is more in favor of the defendants than of the plaintiff. He says that he executed the lease for Alo on Kauai, and a -week after notified Wong Ko, the Honolulu agents, who were also partners, to pay the rent. This was November, 1882. Quai Hee says that he went to China in January, 1883, and in the first case he testifies, he stayed on the plantation for a year after the first lease. At any rate, he admits that he was here until after the first rent to Alo was paid, and might have known of it. He says, however, that he did not know of it until his return from China in 1887.
After a careful consideration of the case and of the opinion of the Chancellor, we see no reason to differ from the conclusion he has arrived at, and therefore,
The appeal is dismissed with costs.