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Show 716 GROUND WATER RIGHTS IN SELECTED STATES "artesian basin" are the owners of the artesian waters of the basin. But the legal relationship between the "owners" of this artesian water and possible claimants of rights in the directly connected nonartesian water was not estab- lished or even discussed. Development of Ground Water Rights During Territorial Status The following discussion pertains primarily to the development of principles of ground water rights in Hawaii during its territorial status. Nearly synonymous with its Statehood in 1959, the provisions of the Ground Water Use act have since been superimposed upon these principles. The act is discussed later under "Ground Water Use Act." Definite Underground Streams Physical characteristics.-As distinguished from physical conditions on the mainland, occurrences of ground water in the Hawaiian Islands have not been such as to bring forth many examples of the facet of ground water known as "definite underground stream." Resorting to mainland law, therefore, the essential characteristics of a subterranean watercourse, are (1) a definite stream (2) flowing in a definite channel, that is, through a known and defined chan- nel.227 For the purpose of determining the classification, "defined" means a contracted and bounded channel, though the course of the stream may be un- defined by human knowledge, and "known" refers to knowledge of the course of the stream by reasonable inference.228 Hawaii Supreme Court decisions rendered early in the 20th century229 concerned a water-bearing gravel stratum 25 to 40 feet thick, composed of loose boulders, sand, and gravel, and resting on a practically impervious substratum. The court did not call the water in this gravel bed "underflow" or a "definite underground stream," and did not discuss the physical features necessary to constitute either. The physical conditions that controlled the decisions were previously noted under "Occurrences of Ground Water in Hawaii-Physical and Legal Interrelationships." Other cases allude to the necessity of "known and well defined channels," but do not cite specific examples of subterranean flows of water conforming to this general legal classification. Legal principles.-In a number of cases, the Hawaii Supreme Court has had occasion to discuss the matter of rights to the use of ground waters flowing in ascertained and defined streams. The court's view appears to be that the rules 221Los Angeles y.Pomeroy, 124 Cal. 597, 633-634, 57 Pac. 585 (1899). 228 See Cave v. Tyler, 147 Cal. 454, 456, 82 Pac. 64 (1905). 229Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 14 Haw. 50, 56-57 (1902); 15 Haw. 675,693-694(1904). |
