OPINION OP THE COURT BY
FREAR, O.J.(Galbraith, J., dissenting.)
Tbe tax-payer returned nearly fifty pieces of kula, taro, pasture, vegetable, mountainous and residence lands in Pauoa, Honolulu. Tbe assessor, increased a number of tbe valuations. Tbe Tax Appeal Court sustained some and not others of those increases. Tbe assessor added a new item — “f water rights Pauoa Valley, $100,000”, which the Tax Appeal Court disal-, lowed, whereupon the assessor brought this appeal. The “f water rights Pauoa Valley” consists of the aggregate of the water rights appurtenant to the lands, particularly the taro lands,- returned as above mentioned, and of no other water *517rights. The water comes from two springs, the site of one of which is owned hy this tax-payer. The various lands supplied by one of the springs are resuectively entitled to water during certain hours once in seven days and those supplied from the other spring are respectively entitled to water during certain hours once in nine days. The insertion of this item by the assessor was based mainly on the fact that this tax-payer and others, who were interested in the remaining third of the water rights in Pauoa Valley, nearly succeeded in getting a bill through the legislature, a few months after the date as of which this assessment was made, appropriating $150,000 for the purchase of all the water rights in the valley, the sites of these springs, rights of way for pipe lines, sites for reservoirs, etc., as an addition to the Honolulu water works and water supply. The reasoning was that if all were worth $150,000, the appel-lee’s two-thirds were worth $100,000.
The tax-payer valued the lands as including these appurtenant water rights. The assessor assessed them as such. The Tax Appeal Court likewise fixed the values of such of the lands as were questioned on the appeal as including the water rights and said in its opinion that at the values fixed the tax-payer “is taxed fairly and even high.”
Whether water rights that are solely appurtenant to and used in connection with particular lands may be assessed separately or not, it is unnecessary to say. No doubt such water rights may be more valuable for other purposes than for those to •which they are applied, just as a town' lot used as a pasture for the time being may be valued as suitable for agricultural or residence or business purposes. But when water rights are appurtenant to particular lands and used solely in connection with those lands and the lands are returned and assessed as including those rights, the latter cannot be further assessed separately for the surplus of value, if any, not so included, much less for their whole value.
There is perhaps another difficulty in the way of sustaining this assessment and that is that there is nothing to indicate what *518surplus value, if any, of tbe water rights was not included in the assessment of the land. That the entire value of the water rights, alone was not $100,000 is clear. If we leave out of account the Governor’s strong condemnation of the proposed bill in his veto message and other circumstances that tend to weaken the evidence adduced in support of the valuation contended for, and assume that all the evidence was not only admissible but entitled to consideration at its face value, still the proposed appropriation was not for the purchase, for $100,000, of these two-thirds of the water rights, which were available only in small fractions on many different particular lands at many different fixed times, but was for the purchase, for $150,000, of all the water rights with complete control and the power to use the water when and where and in what quantities desired, also for rights of way for pipe lines and for reservoir sites, and the sites of the springs, with the right to increase the outflow by tunneling or otherwise, and all for the purposes of the city water supply, to which use no private purchaser could put the water. The two thirds alone not being worth $100,000 and there being no direct evidence showing what they were worth and a considerable portion at least of their value being included in the assessed value of the lands, it would be mostly guess-work to attempt to say how much or even whether any of their value was not included in that of the lands. But, however that may be, these rights cannot be assessed as to a portion of their value as part of the lands and as to the rest separately when they are all appurtenant to the lands and used solely in connection therewith.
Robertson & Wilder for the assessor. J. A. Magoon and J. Lightfoot for the tax-payer.The judgment of the Tax Appeal Court is affirmed.