Opinion of the Court, by
Dole, J.This controversy arose from the action of the defendants who dug a ditch last fall by which the water flowing on to the plaintiff’s land was diverted. Plaintiff’s land, which is situated in Palolo valley, Oahu, lies helow and adjoining certain Crown kalo-land, from which it has received its water for an indefinite time. The evidence is convincing that this acquisition and use of the water from the patches of the land above is an ancient right. This conclusion is supported by the position of the premises, which is such that they naturally must receive the waste water from the adjoining wet lands above, which circumstance alone is often sufficient to account for the growth of a water right under the ancient Hawaiian system of irrigation.
It appears that the only land entitled to water from the stream in question, Waiamau, was originally Crown Land, and the plaintiff lost his case before the Commissioner, simply because he testified that he had no Crown Land. But the evidence shows that plaintiff’s land, which used this water, was formerly Crown Land, but afterwards came into the possession of a native named Pauahi, and ceased to be spoken of as Crown Land.
W. R. Castle, for plaintiff. Thurston & Frear, for defendants.The ditch by which the defendants have diverted this water is a new ditch, and there is no evidence that it was ever formerly diverted in any way before reaching the plaintiff’s land. The action of the defendants in the matter appears to be entirely without justification. The decision appealed from is reversed, and the defendants are ordered to fill up the ditch by which the water was diverted, within ten days from this date, and to refrain from any further interference with the plaintiff’s right to the natural flow of water to his land from the lands adjoining them above.