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Show 254 HAWAII of the lower property by draining onto it water which would not normally flow in that direction.79 However, the Hawaii Supreme Court has recently ruled that a possessor of land may interfere with the natural flow of surface water in order to develop his land so long as the interference is not unreasonable under the circumstances of the particular case. The circumstances considered by the court to be relevant are: The nature and importance of the improvements; the foreseeability of injury to others; the extent of interference with the surface water; and the amount of injury done to other landowners compared to the value of the improvements.80 4. Ground Water a. court decisions involving ground water The early court decisions discussed ground water in terms of under- ground streams, artesian water, and nonartesian percolating water. The Hawaii Court has suggested that the rules governing ground water in definite underground streams are different from the rules involving other ground water, but has not yet articulated the rules for such underground streams. However, there is language in some of the early decisions which suggests that if a definite underground stream can be shown to exist, the holders of water rights therein have a legal call upon springs which are a tributary source of supply.81 As to water in artesian basins, the Hawaii court seems to have adopted a combination of reasonable use and correlative rights. That is, the rights of each user are correlative with other coowners within an artesian basin and each user is entitled to make a reasonable use of the water with regard to similar rights held by other users. Each user is limited to his share of the available water supply. This general rule was announced by the Hawaii Supreme Court in 1929 in the case of City Mill Company v. Honolulu Sewer <&, Water Commission8Z and still appears to be the rule today, although the precise relationship between the coowners of the water does not ap- pear to have been yet defined by the court. However, in this decision the court did observe that each owner of land overlying an artesian basin was entitled to the use of water so long as he did not injure the rights of others by his use. In times of shortage, it was indicated that there would be a proration, and that each user would be limited to a reasonable share of the available water supply. The court further suggested that under certain circumstances use might be permitted on lands other than the lands overlying the artesian basin. It must be remembered that the foregoing decision involved ar- tesian and not percolating ground water. As to the latter, the Hawaii Supreme Court made statements in cases predating its adoption of the correlative rights doctrine that rights do not attach to percolat- ing ground water. However, the adoption of the correlative rights 78 Hamilton v. County of Hawaii, 40 Haw. 193 (1953) ; Carter v. County of Hawaii, 47 Haw. 68, 384 P. 2d 308 (1963). a° Rodriguez v. State, 472 P. 2d 509 (1970). 81Hutchins, The Hawaiian System of Water Rights, 144-5, 166-171 (1946) ; Davis v. Afong, 5 Haw. 216 (1884) ; Wong Leong v. Irwin, 10 Haw. 265 (1896) ; Palolo Land & Improvement Co. v. Territory of Hawaii, 18 Haw. 30 (1906). ^30 Haw. 912 (1929). |
