Hamilton v. County of Hawaii

OPINION OF THE COURT BY STAINBACK, J. This is a suit at law for damages filed by plaintiff against the defendant, the connty of Hawaii. The complaint consists of two counts. In the first count it is alleged that the county, by constructing a trench and dam, diverted the natural flow of surface water upon its land into a natural watercourse which cuts and runs through plaintiff’s land, which said surface water if not diverted would have flowed to Palai street away from plaintiff’s land, and that as a result of said diversion plaintiff’s land was flooded and damaged. The second count alleged the diversion of the surface water on defendant’s, land into a watercourse which runs through plaintiff’s lot and by reason thereof the watercourse was required to carry off a greater volume or amount of water; that the de *194 fendant failed to ascertain the inadequacy of the watercourse to absorb and completely carry off the waters diverted into said watercourse, in addition to the waters which normally flow through the watercourse, and that the plaintiff was damaged by the excessive flow of water. Damages were requested in the sum of $581. A. M. Felix, County Attorney, County of Hawaii (also on the briefs), for defendant-appellant. T. OMno (also on the briefs) for plaintiff-appellee. The court overruled the demurrer as to the first count and sustained it as to the second count. The common-law doctrine is that surface water is a “common enemy”; that causing surface water to flow in its natural direction through a ditch on one’s own land, instead of over the surface or by percolation as formerly, where no new watershed is tapped and no addition to the former volume of surface water is caused thereby, is not a wrongful or unlawful act. (56 Am. Jur., Waters. § 73, pp. 559, 560.) However, an important limitation upon such right is that the owner of property may not drain into a stream or natural watercourse or drainway, surface waters which otherwise would not flow in that direction nor upon the servient lands. (56 Am. Jur., Waters, § 74, p. 561; 28 A. L. R. 1262, annotation.) The rulings of the trial judge on both counts are correct. Affirmed.