DISSENTING OPINION BY
GALBRAITH, J.It appears that there are numerous water springs near the head of Pauo'a Valley but that the source of its principal water *521•supply is twTo particular springs: that one of-these is located on the tax-payer’s land and the other on the land of another but the tax-payer owns such an interest in the latter 'as gives him the ■ownership of two-thirds interest of the two springs: that the tax-payer also owns considerable land in Pauoa Valley which he returns for taxation at no hig'her valuation than the adjoining lands of others who claim no interest or right in these springs other than the common water rights appurtenant to their respective lands.
It is not denied that the taxpayer made a vigorous effort during the session of the Territorial legislature commencing on February IS, 1903, and closing April 28, 1903, to effect a sale of his rights in the water of these two springs for $150,000, and would have succeeded in so doing but for the veto of the Governor and the failure to control the votes, lacking one, in the Senate necessary to pass the measure over the Governor’s veto. In the absence of any evidence to the contrary the assessor had ■a right to assume that the tax-payer’s interest in this water privilege was as valuable on the first day of January, 1904, as it was at the close of the legislative session in April prior thereto. Acting upon that presumption he had a right to place the valuation of $100,000 on this property, the same valuation placed thereon by the tax-payer when he wanted to transfer it to the public.
The tax-payer’s dominion over these two springs and the water flowing therefrom is property separate and distinct from the water rights appurtenant to the lands in the valley below. The latter right has no value except the use that may be made •of it in connection with the land to which it is appurtenant. 'Therefore its value may properly be included in the assessment ■of the land. The property in the springs, however, has a specific value in itself. It is of great value for uses entirely independent of the cultivation of land, for instance, in supplying the community with water for domestic and other purposes and for this reason may be valuable as specific property for taxation purposes separate and apart from the land. The fact that such *522use is possible in this instance, by reason of tbe location of the springs in close proximity to Honolulu and the pressing need for a suitable water supply for domestic purposes here, does-not in the least lessen the value of the taxpayer’s property in these springs.
The absurdity of the claim that the value of the property in these springs was estimated and included in the value of the-land as approved by the Tax Appeal Court is apparent when it is remembered that the assessment includes many separate tracts of land, aggregating about sixty acres altogether, and the sum of the valuations is only $43,750, less than one. half of the value placed on the interest of the tax-payer in the water privilege alone. The assessor in my opinion, should be commended for taking the tax-payer seriously in his dealing with the Territory through its legislature, and holding that the property had the same value for taxation purposes as it was claimed to have by the taxpayer when offered for sale to the Territory.
This court ought to presume that the legislature, a co-ordinate branch of the government, was acting in good faith in dealing with this question and in expressing its willingness to purchase Mr. Booth’s rights in the water privilege in the two-springs, two thirds of which he claims to own and had a right to dispose of 'absolutely, for $150,000 of the public fund. This-court has no right to presume such perfidy on the part of the legislative assembly as the contention of the tax-payer implies.
What was this property or water privilege that the assessor has valued at $100,000 and that is claimed by the tax-payer to be included in the value of his lands assessed at $43,750?
The Senate committee having the bill in charge looking to the purchase of Mr. Booth’s right in the springs, in their report to> the Senate, among other things, say: “We have personally examined these springs and find from measurements made by several engineers that there are about 1,100,000 gallons of water flowing daily. This measurement was made in the latter part of the month of March, and the month previous to the month of *523March haVe been, very dry so the measurements made indicate-the lowest flow obtainable from the springs.”
The report of an engineer, presumably made at the instance of Hr. Booth, reads in part as follows: “Measurement taken at the mouth of two perpetual streams, the sources of which are two springs, at an elevation between 550 and 600 feet, situated in Pauoa Valley, about two miles mauka of the terminus of the Pacific Heights Railroad. The-springs are not affected by the act of rain-fall, giving an output of 859,920 gallons in twenty-four hours, and by developing can be increased, by conservative estimate, to ten times this amount. Measurement taken from a stream at an elevation of 250 feet, in the same valley, lower down, the source of which stream is several small streams, gives an output of' 253,700 gallons per twenty four hours. These springs are all located in Pauoa Valley, which is a natural watershed and would be a valuable reservoir site for the government.”
The report of another engineer to Mr. Booth relative to the-value of these springs, reads in part as follows: “1. From a close observation it is my opinion that the Pauoa springs represent but a very small portion of the underground flow, having its source in the interior of the island where a large area of permeable ground receives the copious rain-fall of that higher altitude which being filtered and collected in its passage to the lower levels a small portion of said flow is forced to the surface through favorable conditions occurring in the rock under the Pauoa Valley. 2. That the volume of the outflow of these springs can be greatly increased by proper development, say, tunneling, as has been clearly demonstrated by engineering experience in other localities where similar conditions exist. 3. That the fact that these springs are not affected by drouth or flood is evidence of their supply from a subterranean source. As to their desirability as a water supply for the city of Honolulu, I beg to submit the following:
“1. Purity of water as shown by medical analysis.
“2. They being at such an elevation (about 600 feet) above-*524the sea level, and such a short distance from the center of the •city.
“3. The simple and inexpensive manner in which the water can be conveyed to a point available for distribution by a pipe line on the northerly slope of Tantalus Eidge without expensive trestle work or tunneling.
“4. Said water can be brought to a small reservoir on a point of the ridge, say 200 feet above Punchbowl Hill (the water to this point need not be conveyed under pressure) and dropped from this to a lower distributing reservoir, thus furnishing power to an electric plan before final utilization for domestic and other city purposes.”
Among numerous witnesses certifying to the virtue and value of these springs are a number of physicians and surgeons, one of these says:
“Every city endeavors to put before its populace the best water available and Honolulu may be regarded as especially fortunate in this resuect inasmuch as right above, say within two miles of the center and at an elevation covering the most important sections of the city, there is sufficient spring water •of a. purity impossible to excel and unaffected in quantity through the change of seasons. I refer to the Pauoa Springs, the medical analysis of which is attached herewith, subjected to direct bacteriological examination it reveals no pathognomonic bacterio or micro-organism. From a medical standpoint this water supply can be converted into an ideal system, and there is no doubt in my mind that the matter will meet with the approval of our legislators.”
Aside from the probative force of the foregoing evidence, and «much more to the same effect, tending to show the value of the right claimed in these two springs, the tax-payer by presenting and urging it before the legislative committees and the public gave it the additional weight of his approval and indorsement. So vigorously and persistently did he press the matter upon the attention of the legislature that the great majority of the people’s representatives in the legislative assembly accepted his view of the desirability and value of his rights in these springs and the sale failed through a very slight margin. I must assume that Mr. Booth was acting in good faith with the legis*525lature and intended to give tbe Territory something; of value-for the expected one hundred and fifty thousand dollars and that his rights and privileges in these springs have the same value-for taxation purposes that he represented them to have when he appeared before the legislature as a purveyor of them. By his conduct Hr. Booth has rendered it entirely unnecessary for this court to speculate or to attempt to apply some set rule to the facts in order to ascertain the “full cash value” of this, property. We should assume that he placed the “full cash value” on it himself when he attempted to sell it to the Territory first for $250,000 and later for $150,000. Under the facts, of this case the doctrine of estoppel, or common honesty, ought to close the mouth of the tax-payer and forbid him to question the valuation made of this property by the assessor.
It does not seem to me that Mr. Booth has any just cause of complaint if the same valuation is placed on his-property for-taxation purposes that he so persistently represented it to have when he wished to sell it to the Territory. Such a view is certainly in favor of public morality, if not of private virtue and common honesty.
It is clear to my mind that the rights and privileges owned by the tax-payer in the Pauoa Springs is of great value and that, his lands as returned and approved by the Tax' Court are not valued in excess of their true value, exclusive of his property in these springs, and that the assessor therefore had a right to assess the same, using the best information at his command,, and that the valuation placed thereon, namely, $142,150, ought to be sustained.