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Show WATER RIGHTS IN SURFACE WATERCOURSES 175 WATER RIGHTS IN SURFACE WATERCOURSES General Nature and Classification "The law of priority of appropriation which prevails in the arid sections of the mainland of the United States has never been recognized in this jurisdiction."16 The waters of Hawaii streams are essentially private, not public waters. Originally they all belonged to the King as sole landowner; thereafter rights of use became vested in the public and private owners of the primary land units; and individual rights as against the konohikis were acquired by ancient usage, adverse use, and grant. It is true that the government controls the use of stream waters incident to the lands that it owns; but it is equally true that neither the legislature nor the courts of Hawaii have ever recognized the doctrine of prior appropriation as effective in this jurisdiction with respect to surface water- courses. Classification of currently established rights in surface watercourses in Hawaii begins with the ancient rights, which consisted of (1) those of ahupuaas and ills kupono and (2) those accorded to individual native tenants out of the water supplies of such primary units. The great body of surface water rights in the Islands currently comprises: (a) Ancient rights of major land divisions (ahupuaas and ills kupono). (b) Rights conveyed by the konohiki of an ahupuaa or Hi kupono. (c) Ancient appurtenant rights of kuleanas or small tracts of cultivated land awarded to native tenants, and land units or parts of land units irrigated from ancient times, (d) Statutory rights in gross which accrue to lawful occupants within an ahupuaa after it has passed to private ownership, (e) True prescriptive rights. (0 Riparian rights in surplus freshet waters of a stream. The kuleana or "ancient appurtenant" rights composing the third group were originally termed "prescriptive," but this was a misnomer. Truly prescriptive rights against the konohiki or others form another class of established water rights. (See "Prescriptive Rights," discussed later.) After providing for these ancient and prescriptive rights, the konohikis have original title to all surplus stream waters on the primary land units. In this connection the classification of water rights includes a modern version of the riparian doctrine. The principles that govern these rights have been developed chiefly in a number of reported court decisions beginning in 1867.17 There is no great body of statutory law on the subject. In view of the private status of surface watercourses in Hawaii, there is no administrative procedure under which one may acquire a right to the use "Carter v. Territory of Hawaii, 24 Haw. 47, 57 (1917). "Peck v. Bailey, 8 Haw. 658 (1867). |
