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Show 174 THE ANCIENT HAWAIIAN WATER RIGHTS titles free of commutation, called "kuleana" awards. These kuleanas are estimated to have aggregated less than 30,000 acres, whereas the konohikis received approximately 1.5 million acres and the crown and government a combined total of about 2.5 million. However, the kuleanas of the common people were the "cream of the land," very valuable for native taro (kalo) culture so long as their appurtenant water rights were assured, whereas the other groups contained extensive areas of mountainous, desert, or forest land.10 The land commission was required by law to render its decisions in accordance with civil code principles and native usages, which among other things related to "water privileges."11 Apparently the commission did not determine or award water rights specifically as such; but it is not likely that it could have escaped careful consideration of water rights. The fact that a kuleana award said nothing about appurtenant water rights was apparently of no importance. In most cases, according to the supreme court, express mention was not made of water rights by the land commission even when such rights were undoubtedly intended to pass.12 Land Units Commonly Associated With Water Rights Ancient Hawaiian land units to which water rights are commonly related are:13 (1) The ahupuaa. These units varied in size from less than 1,000 to more than 100,000 acres. In the ideal but by no means universal arrangement, the ahupuaa was a wedge-shaped tract radiating from the mountain top and extending with increasing width to the seashore. An ahupuaa might or might not include the entire drainage area of a stream; or the main stem of a stream might cross two or more such land holdings on its way to the sea.14 (2) The ///. This term designated either a subdivision of an ahupuaa made by the konohiki for his own convenience, or an /// kupono carved out of an ahupuaa by the King and held independently of the konohiki. (3) The kuleana. A small tract of land within a larger tract claimed by another. The term was commonly used to designate the tract of cultivated land awarded to a hoaaina or native tenant by the land commission.15 10 Kuykendall, supra note 1, at 294. "Haw. Laws 1846, § 7, pp. 107, 109. "Carter v. Territory of Hawaii, 24 Haw. 47, 58-59, 64 (1917). See also Peck v. Bailey, 8 Haw. 658, 660-661 (1867); Jones v. Meek, 2 Haw. 9, 12 (1857); Bishop v.Mahiko, 35 Haw. 608, 656 (1940). "See "Hawaiian Land Terms," Thrum's Hawaiian Annual, pp. 65-71 (1925); King, R. D., "Hawaiian Land Titles," First Progress Report, Territorial Planning Board of Hawaii 41-45 (1939). 14 The characteristics of these early primary land divisions were summarized in In re Boundaries of Pulehunui, 4 Haw. 239, 240-242 (1879). See also Palama v. Sheehan, 50 Haw. 298, 300, 440 Pac. (2d) 95 (1968). 15 For one case referring to such an award, see Maikai v. A. Hastings & Co., 5 Haw. 133 (1884). |
