OCR Text |
Show WATER RIGHTS IN SURFACE WATERCOURSES 181 narrow closely-spaced strips and are very steep"; and remarkably high intensities frequently occur on the small steep streams that are common here.48 In a leading water rights case, in which the doctrine of riparian rights was invoked, the Supreme Court of Hawaii divided the waters of the stream in litigation into "ordinary or normal flow" and "surplus flood and freshet waters" and impressed the distinction upon rights of use.49 The physical distinction was again used in another riparian rights case.so This distinction, mentioned earlier under "Ahupuaas and Ilis Kupono," will be discussed further under "Riparian Rights: Limited Application." Many of the ancient "auwais" (ditches) of Hawaii long antedated the period of land reform. Regulation of uses of water therefrom by custom was also of ancient origin. As established custom was the controlling principle in determining established water rights, there was no need for differentiating ancient artificial watercourses from natural ones, and it was not done. Principles pertaining to natural streams "apply equally to artificial water courses as this auwai is."51 From the earliest times at which water rights cases were reported, the right to use water has been held to be an easement in favor of land, to be gained by grant or prescription.52 Whether ancient or prescriptive, this right is regarded as appurtenant to land by reason of use of the water thereon.53 Konohiki rights, while presumably appurtenant to the ahupuaa or ili kupono through which the stream flows, are not appurtenant to any particular part thereof. (See "Ahupuaas and Ilis Kupono," above.) The water right, however, is not an inseparable appurtenance, for it may be severed in ownership from the lands by a separate sale of the water right,S4 or separated by prescription or condemnation.55 As an easement in land, the water right is real estate.56 48Carson, M. H., "Surface-Water Resources," First Progress Report, Territorial Planning Board of Hawaii, pp. 125-126 (1939). 49Carter v. Territory of Hawaii, 24 Haw. 47, 70-71 (1917). 50 Territory of Hawaii v. Gay, 31 Haw. 376 (1930). 51 Davis v. Afong, 5 Haw. 216, 223-224 (1884). See also Wilfong v. Bailey, 3 Haw. 479 (1873); Carter v. Territory of Hawaii, 24 Haw. 47, 57-58, 60-62 (1917). In the Carter case, supra at 61, the court said, "Large ditches which were constructed and have been used for the purpose of diverting a constant flow of water from a stream and distributing it among several parcels of land are to be regarded virtually as natural water-courses." 52Peck v. Bailey, 8 Haw. 658, 661-662 (1867); Appeal of A. S. Cleghorn, 3 Haw. 216, 218 (1870). 53Hawaiian Commercial & Sugar Co. v.Wailuku Sugar Co., 16 Haw. 113,117 (1904). 54Inre Taxes, Waiahole Water Co., 21 Haw. 679, 682 (1913). "See Hutchins, W. A., "The Hawaiian System of Water Rights" 111-120, 220-222 (1946). 56Kaneohe Ranch Co. y.Ah On, 11 Haw. 275, 276 (1898). |