OCR Text |
Show 180 THE ANCIENT HAWAIIAN WATER RIGHTS the land was entitled by ancient custom to water for irrigation,37 "and the lack of such description would probably be evidence to the contrary, though not conclusive."38 In addition, conveyances of crown land by warranty deed have been held to pass ancient rights shown to be appurtenant.39 "Kamaaina" or "old-timer" testimony, although sometimes conflicting and uncertain,40 has usually been accorded great weight.41 The position of the premises, where water was distributed in successive terraces, has supported adjudications of ancient rights in lower tracts.42 The quantity of water to which the ancient right attaches is that quantity customarily used and necessary for the use that was being enjoyed at and immediately prior to the time the legal right accrued.43 Owing to the then importance of kalo or taro culture, the quantity of water required therefor was probably the basis of most ancient agricultural rights.44 Likewise, the use has been adjudicated in most cases for irrigation purposes, but it also includes water for household and other domestic purposes.45 Aside from the preference accorded to domestic use, noted below,46 ancient appurtenant rights are apparently on a basis of equality with respect to each other. In the literature, neither the actual time of beginning use of water-provided use was being made when title to the land passed to private parties-nor the date of award or of patent appears to be a factor. Rights accustomed to divert proportional parts of the usual streamflow are on an equality when the supply becomes insufficient for their usual requirements; all must be reduced proportionately.47 Some Aspects of the Ancient Rights Most surface water used in Hawaii is diverted directly from natural watercourses, to which rights of use attach. The characteristic drainage areas of the islands are short, "extending from the crests of the mountains to the sea in "Territory of Hawaii v. Gay, 31 Haw. 376, 383 (1930). ^Carter v. Territory of Hawaii, 24 Haw. 47, 58-59 (1917). 39Peck v. Bailey, 8 Haw. 658, 661 (1867). ™Kohala Sugar Co. v. Wight, 11 Haw. 644, 646, 651 (1899). A1Palolo Land & Improvement Co. v. Wong Quai, 15 Haw. 554, 564 (1904); In re Boundaries ofPulehunui, 4 Haw. 239, 245 (1879). 42 Wailuku Sugar Co. v. Hale, 11 Haw. 475, 476 (1898). *3Carter v. Territory of Hawaii, 24 Haw. 47, 64, 66, 71 (1917); Territory of Hawaii v. Gay, 31 Haw. 376, 383 (1930). MSee Lonoaea v. Wailuku Sugar Co., 9 Haw. 651, 665 (1895); WongLeong v. Irwin, 10 Haw. 265, 267-269 (1896); Palolo Land & Improvement Co. v. Wong Quai, 15 Haw. 554,560-563 (1904). 45 Territory of Hawaii v. Gay, 31 Haw. 376, 395-396 (1930). "See Carter v. Territory of Hawaii, 24 Haw. 47, 62, 69, 70-71 (1917). 47 See Yick Wai Co. v. Ah Soong, 13 Haw. 378, 383 (1901); Carter v. Territory of Hawaii, i 24 Haw. 47,60-61 (1917). |