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Show 186 THE ANCIENT HAWAIIAN WATER RIGHTS The extant enactment reads as follows:82 Common law of State; exceptions. The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided, that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State. Early Mention of Riparianism Discussions of the riparian doctrine appeared at some length in Peck v. Bailey, the earliest reported opinion regarding Hawaiian water rights, probably because counsel on both sides had made frequent reference to the matter; but this decision made no adjudication of any riparian right.83 In several succeeding cases, also, there were some discussions of or references to the doctrine.84 However, it was not until 1917-50 years after Peck v. Bailey-that the supreme court in the Carter case definitely adjudicated a riparian right in accordance with riparian principles then for the first time declared.85 In the Gay case, 13 years later, the actual holdings by a divided court left the principles so declared unaltered.86 The Carter and Gay Cases The locus of the Carter case,87 decided in 1917, was on the Island of Hawaii. The stream arose on an ahupuaa owned by the Territory and flowed down to an ahupuaa in private ownership. Most of the court's opinion was devoted to important questions other than the principal issues. The latter issues were the effect of a greatly diminished water supply upon the rights of the parties, and the right of the Territory to make a new use of part of the water. There was no extended discussion of the riparian doctrine, nor was there any explicit consideration of the previous Hawaiian cases. After disposing of 82 Haw. Rev. Stat. § 1-1 (1968). *3Peck v. Bailey, 8 Haw. 658, 661-662, 670-672 (1867). 84See Wailuku Sugar Co. v. Widemann, 6 Haw. 185,187 (1876); Haiku Sugar Co. v. Birch, Tax Collector, 4 Haw. 275, 277 (1880); Wong Leong v.Irwin, 10 Haw. 265, 270-272 (1896); Cha Fook v. Lau Piu, 10 Haw. 308, 313 (1896); Brown v.Koloa Sugar Co., 12 Haw. 409, 411412 (1900); Scharsch v. Kilauea Sugar Co., 13 Haw. 232, 236 (1901); Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 680 (1904). 8iCarter v. Territory of Hawaii, 24 Haw. 47 (1917). ^Territory of Hawaii v. Gay, 31 Haw. 376 (1930), affirmed, 52 Fed. (2d) 356 (9th Cir. 1931), certiorari denied, 284 U.S. 677 (1931). 89Carter v. Territory of Hawaii, 24 Haw. 47 (1917). |