OCR Text |
Show WATER RIGHTS IN SURFACE WATERCOURSES 183 In the Carter case, changes in both point of diversion and method of diversion were approved.63 Changes in other cases sanctioned on the invariable condition of noninjury to others include changes in location of canal;64 place of use,6S including a change from one ahupuaa to another;66 diversion of water to another watershed;67 purpose of use, including changes from one irrigated crop to another;68 and consolidation or exchange of water supplies under a rotation schedule.69 The water right may be lost by prescription (adverse possession and use on the part of another for the statutory period of limitations). The legal effect of suffering another to possess one's land adversely for the statutory period is not only to bar the remedy of the owner of the paper title, but actually to divest his estate and to vest it in the adverse party, who obtains a title in fee simple as perfect as a title by deed.70 The same principle applies to prescription in relation to water titles. The loss of one's water right by prescription necessarily coincides with the acquisition by another party of a prescriptive right to use the water. (See "Prescriptive Rights," below.) The water right may also be lost by abandonment. "The alleged abandonment of an easement presents a question of intention and of fact, the burden of proof being upon the party making the allegation."71 "At at .51,68. "Liliuokalaniv. Pang Sam, 5 Haw. 13 (1883). 6sPeck v. Bailey, 8 Haw. 658, 666, 673 (1867). There is "no objection either in law or reason to allowing" such transfers. Lonoaea v. Wailuku Sugar Co., 9 Haw. 651, 665 (1895). 66 Wong Leong v. Irwin, 10 Haw. 265, 270-272 (1896). "There is no difference in principle between a transfer from one place to another in the same ahupuaa and a transfer from one ahupuaa to another." "Tacit recognition of the practice as incidental to approved changes in place of use./d; Foster v. Waiahole Water Co., 25 Haw. 726 (1921); Territory of Hawaii v. Gay, 31 Haw. 376 (1930). wPeck v. Bailey, 8 Haw. 658, 666 (1867). Changes in irrigated crops have been consistently upheld. 69Homer v. Kumuliilii, 10 Haw. 174,180-182 (1895). 70Waianae Co. v. Kaiwilei, 24 Haw. 1, 7 (1917), citing Leialoha v. Wolter, 21 Haw. 624, 630 (1913). 71 Carter v. Territory of Hawaii, 24 Haw. 47, 55 (1917). See Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 691 (1904). In the Carter case, supra at 52, 68, the court held that the ancient rights for irrigation purposes by certain individuals who had abandoned them must be regarded as having reverted to the Territory. Presumably the reversion to the Territory resulted from the adjudicated ownership by the Territory of all the waters of the ordinary or normal flow of the stream, subject to vested appurtenant rights. In the Hawaiian Commercial & Sugar Co. case, supra, a contention was made that the rights of ancient taro lands, claimed to have been abandoned, had reverted by operation of law to the konohiki. The claim of abandonment was not sustained; but had it been upheld, the reversion necessarily would have been to the konohiki, against whom the ancient rights had been established. The waters of privately owned ahupuaas are in private-not public- ownership; hence in such case there would be no question of reversion to the public. |