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Show 250 HAWAII portion of his land but the transfer was silent with respect to water, the water which had been historically used on this portion of the land passed as an appurtenance, even though not specifically men- tioned in the deed.44 d. RIPARIAN RIGHTS In addition to other bases for recognizing rights to water, Hawaii has, to a limited degree, adopted the riparian doctrine of water rights. The Hawaii Supreme Court has held that rights to use sur- plus waters of flood, freshet, or storm flows of a stream which flows through two or more ahupuaas or ili kuponos are to be determined under the riparian rights concept. But, as discussed above, the sur- plus waters of the normal flow of such a stream belong to the owner of the unit of land within which the water arises, the same as a stream which is confined to one unit of land.45 It is interesting to note that the riparian concept is not applied to the normal flow of the stream, contrary to the practice of those States which have adopted the riparian doctrine. e. STATUTORY RIGHTS In 1850, the Hawaii Legislature passed a statute for the benefit of the native tenants who occupied and cultivated lands within the large land divisions. The right granted by the statute is for the use of water for domestic purposes, and accrues to the lawful occupants of land as against the owner of the large land division.46 Statutory rights are to be distinguished from the ancient appurtenant rights. f. PRESCRIPTIVE RIGHTS Although there is language in some of the early cases which sug- gests that ancient rights are prescriptive in nature, there is a basic difference between the two. Ancient use rights were permissive in nature, while an adverse use right may be acquired from the lawful owner only by an adverse and hostile use of the water by another for the prescriptive period. The adverse use must be an actual, open, notorious, and continuous use for the entire statutory period of limi- tations.47 The possession must be exclusive and the use must be made under a claim of right.48 The quantity of water to which the adverse use attaches is limited to the amount of water which was actually used, even if this only encompasses a portion of the right being ad- versed.49 Even though there may be a number of users from the source from which the adverse user is claiming the right, the only rights diminished are those which are actually affected by the adverse diversion.50 The party claiming an adverse use right must prove it by a "clear" weight of the evidence.51 "Peck v. Bailey, 8 Haw. 47 (1867). 45 Carter v. Territory of Hawaii, 24 Haw. 47 (1917) ; Territory of Hawaii v. Gay, 31 Haw. 376 (1930). *8 Hawaii Rev. Stat, sec. 7-1. «Territory of Hawaii 1. Gay, 31 Haw. 376 (1930); Davis v. Afong, 5 Haw. 216 (1884) ; Kahala Sugar Co. v. Wight, 11 Haw. 644 (1899). 48 Wong Leong v. Irwin, 10 Haw. 265 (1896). ^Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 14 Haw. 50 (1902). s°Lonoaea v. Wailuku Sugar Co., 9 Haw. 651 (1895). 81 Kohala Sugar Co. v. Wighi, 11 Haw. 644 (1899) ; Yich Wai Co. v. Ah Soong, 13 Haw. 378 (1901). |
