Dissenting Opinion of
Dole, J.Upon a plea to this bill in which the decree on the second bill was pleaded in bar to this action, the Court in Banco said, in overruling the plea, that the present bill contained the following allegation which was not made by the previous bill, to wit: “ At the date of the said lease and for some time prior *744thereto, a certain water-course and water-right has been used and enjoyed by the said lessors as appurtenant and belonging to the premises demised under said lease, and always has been and now is of right belonging and appurtenant thereto.”
The effect of this decision is to place the case about where it stood under the first bill, which alleged, among other things, that the water-course and the water were, at the time of the execution of the lease, appurtenant to the leased premises.
The evidence greatly preponderates in favor of such watercourse being appurtenant to the leased premises. The witness, Kaiwi, introduced by the plaintiffs, had lived at Waipa for forty years. He said, “ in old times the land was konohiki, used for taro. It had water; it came from the Waipa stream, through the ditch that has been spoken of. There is no other ditch from olden time by which this land can be watered. The spring Kiwaa is small; there is water there in rainy weather; it would not be enough for this land.” Also, “The ditch was enlarged by the sugar plantation in 1863 and 1864; after the sugar plantation abandoned the land, Apakeen planted rice on it, using water from the same ditch.” Also, “Nuuanu’s land, now held by Charman, is the land where the dispute is. When Nuuanu had the land the water ran through the ditch on the land.” He further stated that Nuuanu was his brother-in-law. This evidence of Kaiwi is supported by Loika, another old resident of Waipa, Apakeen and Albert S. Wilcox.
The witnesses introduced by the defense against the plaintiffs’ claim to this water as appurtenant to the leased premises, were Makahiki, Ku and Kenaulu. Makahiki lived at Waioli and Hanalei and says that there was no ditch there before the time of the plantation, but Ku, who has lived in Waipa twenty years or more, admits the existence of an old ditch before the time of the plantation, but says there was no water in it. Kenaulu also, who formerly lived at Waipa, says there was a trace of another ditch, but it was lost before it reached Nuuanu’s land. He also says, that the taro land on the leased premises was formerly watered from the Kiwaa spring; and Ku says he thinks that *745the old ditch watered this taro land, and then inconsistently says they were watered from another source, i.e., the Kiwaa spring.
This testimony of the defendants’ witnesses entirely fails, in my mind, to break down the plaintiffs’ evidence supporting the allegations of the appurtenant water-course. The claim of the plaintiffs on this point is strengthened by the testimony of Apakeen, who cultivated rice upon the demised premises from the time the sugar plantation was given up till, these plaintiffs took possession, a period of about six years, under a lease from Albert S. Wilcox. He says in substance, that they got water from the old ditch which is in dispute and which crossed the Alo or Charman land, that water ran through that ditch on to the premises in question during that whole period up to the time the present plaintiffs took possession, and that after he had been using this water for six years, Charman wanted fifty dollars for use of the water, which was paid. This witness speaks of himself as one of the lessors of the plaintiffs. Char-man’s testimony agrees with that of Apakeen at this point, except that he says he demanded one hundred dollars for the use of the water and received eighty. There is no evidence whatever that Charman had any right to charge anyone for the use of this water running through his land. When he purchased the land of Wilcox, in 1875, the ditch was there and the water was running through it to the premises now occupied by these plaintiffs, and which Wilcox, after his deed to Charman, leased to Apakeen, under which lease Apakeen used this water-course without claim or opposition from Charman for six years. Charman says, “I claim the water; I bought the water and ditch with the kuleana. I don’t know whether the deed says anything about it;” and his deed was not produced. I am convinced that Charman’s demand for pay for the use of the water which ran through, but did not have its source in his land, was pure bluff on his part, without a shadow of right, and that he accomplished his end merely through the ignorance of Apakeen as to his rights.
*746It may be argued at this point, that admitting the facts and the law to be as I have found them, the plaintiffs are bound by their lease from the defendants to pay rent for this water. But it seems to me that, having found the water and the ditch through which it runs to be appurtenant to the land leased to the plaintiffs, the lease, which also demises the appurtenances belonging to the land, binds these defendants who were parties thereto, and they should not be permitted to take advantage of the ignorance of the plaintiffs, even though they labored under the same ignorance themselves, to obtain additional rents for a valuable interest covered by the original lease.
Whatever may be the correct conclusion on this point, there is much in the evidence and the records of the case which supports the plaintiffs’ contention that the separate lease for the water-right was not mentioned in the negotiations for the lease of the premises and that Gee Chung, the manager of their plantation, signed.the lease of the water from Alo from dire necessity and without the knowledge of Kwai Hee, who appears to be the head of the company. The agreement, by which the plaintiffs entered into partnership for the cultivation of the demised premises, has the same date with the lease thereof, and contains an assignment of this lease, which was made to Kwai Hee and Gee Chung only, to the partnership. It also provides that “all other leases of land situated in said Ahupuaa of Waipa now held or that may be held by any one or more of the said copartners in his individual or their joint names, shall be partnership property but there is no allusion whatever in the letters of copartnership to the future lease of this water-right) or of any water-right, thus affording strong negative testimony that at the date of the first lease there had been no negotiation in regard to the water-right in question as a distinct property from the demised premises. It is true that Kwai Hee makes contradictory statements in regard to his presence at Waipa when the lease of the water-right was signed ; but the fact that no witness on either side testifies to his being there, and his own final testimony that he was not there, raises a doubt in my *747mind of his being present at Waipa after the first lease was signed and before he went to China in the following January. At the first trial, the defendant, Alo, who is deeply interested in the results of the suit, was the only witness who testified to an understanding at the time the first lease was negotiated, that the water-right was not included within its stipulation but was to be conveyed by a separate lease. At the second trial his evidence on this point was rather lamely supported by Tong Chow who, however, did not know that Kwai Hee was present when the water was talked about, and further positively says that nothing was said on the subject to Monsarrat, who drew the lease of the premises.
It seems to me, therefore, that the defendants’ contention that the water-right was understood, at the time of making the first lease, to be a distinct matter to be subsequently provided for by a separate instrument, is not made out.
In accordance with-the foregoing reasons I am obliged to dissent from the opinion of the Court, feeling that the plaintiffs have satisfactorily shown that they are entitled to relief.