The statute, as amended by Act of 1860, reads thus: “It shall be the duty of such Commissioners * * to hear and determine all controversies respecting rights of ways and rights of water between private individuals,” &c.

The Commissioners’ duties are of a judicial nature, and require them first to hear, then determine. The appellant being no party to the original controversy, and having no notice thereof, his rights were not affected by the first award. But it does not follow that the subsequent action of the Board, when the appellant became a party of his own accord, was therefore null and void. The award made by the Board after they had jurisdiction of the matter, has force, not as confirming its previous void award, but because jurisdiction had attached.

But the evidence, as reported by the Commissioners, fails to sustain, or to tend to sustain, the award. The right to use water is an easement in land, to be gained only by grant or prescription. The evidence merely shows the opinions of witnesses as to the rights of the parties. For this reason without deciding the point made by counsel concerning kula land, the award must be set aside.