| OCR Text |
Show HAWAII 721 water, or whether it would reappear in the springs, much less that it would follow a definite underground channel. The court relied on the principle that "Subterranean waters, to be the subject of rights, must, like surface waters, in general flow in known and well defined channels." The claim of the spring owners was rejected. In the Hawaiian Commercial case, a minor issue concerned the relation of developed tunnel water used at a mill to the mill owner's adjudicated rights in stream water used at the mill. The tunnel was dug on the mill owner's land after the date of the adjudication. The court stated that "It is undisputed and clear that such tunnel water is the property of the defendant [mill owner] and may be used by it as it sees fit." In other words, the quantity of tunnel water used for mill purposes was held to be in addition to the quantity of stream water adjudicated for such purposes before the tunnel was made. In the Pahlo Land case, the question as to whether a definite under- ground stream flowed from the upper area to the springs apparently was considered important. On the evidence, the question was decided in the negative. Although the court decision turned on points of procedure, there is a strong intimation in the opinion that the holders of rights in the springs would have no claim on ground water supposedly feeding the springs but which was not shown to be flowing thereto in a defined channel. None of the principles suggested or acknowledged in these four early decisions-the only ones rendered down to the early part of the 20th century that bear upon this subject-have been specifically repudiated by the supreme court with respect to nonartesian waters. In summary: (1) No one of them actually adjudicated rights in nonartesian waters as between owners of land underlying a common body of such water; (2) none of them actually adopted any particular doctrine with respect to the use of nonartesian waters; (3) the two earliest ones questioned the possibility of the vesting of "rights" in such waters; (4) the purport of three of the cases is to the effect that ground waters are not legally tributary to springs unless proved to be flowing thereto in defined channels, and hence that "percolating" waters are not legally tributary even though physically tributary, although there was not proof in any of them that "percolating" waters actually were physically tributary to the springs; and (5) one of them acknowledged that the owner of land owned the tunnel waters that such owner had developed on such land, but the ownership so acknowledged by the court was "undisputed," that is, presumably, not disputed by the other party to the litigation. Even aside from any doubt cast upon any of these cases by the court's later treatment discussed under "Artesian waters," below, it would appear that these earlier decisions did not have the effect of firmly establishing rules with respect to "rights" in nonartesian percolating waters, as against others who either owned lands overlying the same waters, or who held established rights in sources of supply fed by such waters. And certainly the treatment |
