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Show 188 THE ANCIENT HAWAIIAN WATER RIGHTS water should be disapproved and that the one partial error in that decision should now be corrected.93 (2) Justice Parsons concurred in the opinion of the Chief Justice so far as it concerned rights in the normal surplus waters; but he dissented from that portion which disapproved of the ruling in the Carter case with respect to surplus flood and freshet waters, "for the sole reason that such disapproval is not necessary to a determination of the issues before us." Without expressing any view as to how that question should be ultimately determined, he refused to support an overruling of the Carter decision in that particular.94 (3) Justice Banks believed that the riparian rule announced in the Carter case was inherently just and not inconsistent with preceding decisions. He believed, further, that the riparian rule should be applied to normal as well as to storm surplus flow, and finally adopted as the law of the Territory.95 In view of the three opinions, the actual holdings in the Gay case with respect to surplus waters and riparian rights can best be stated by quoting a portion of the syllabus by the court: The normal surplus water (as distinguished from the freshet surplus water) of an independent ili, meaning thereby water that is not required to satisfy ancient appurtenant rights and prescriptive rights, is the property of the konohiki of the ili, to do with as he pleases, even though if left unrestrained by man it would flow through a lower ahupuaa before reaching the sea. The common-law doctrine of riparian rights is not in force in Hawaii with reference to the surplus waters of the normal flow of a stream,-using the term "surplus waters" in the same sense as in the next preceding paragraph. The Carter decision, then, adjudicated riparian rights with respect to the surplus flood and freshet waters of a stream as between two ahupuaas riparian thereto. It did not adjudicate riparian rights with respect to the surplus normal flow, nor as between lands within a single ahupuaa. The Gay decision held squarely that the riparian doctrine does not extend, as between konohiki units, to the surplus normal flow of a stream-the only surplus flow at issue in the case. As the Carter decision previously had refused to apply the riparian doctrine to surplus normal flow, the Gay decision thus supports it in this respect. But as to the question of riparian rights in surplus floodwaters, directly involved and decided in the Carter case but not at issue in the Gay case, the rationale of the Gay decision is legally sound in rejecting a premature judgment. The result of these two decisions-the only ones in Hawaii that control the question-is that the riparian doctrine applies, as between konohiki units, to 93 31 Haw. at 394-403. 94/c?. at 404408. 95 Id. at 409417. |