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Show 52 THE RIPARIAN DOCTRINE Originally, all land in Hawaii belonged to the king, the ruling chief, who from time to time made revocable allotments of tracts to the principal chiefs. In 1848, a voluntary division of lands was made between the king, the chiefs, and the government. By the treaty of annexation, title to "all public, government or crown lands" was conveyed by the Republic of Hawaii to the United States. Ancient land units in the islands comprised chiefly the ahupuaa as the primary division of land; the ili kupono, usually geographically a part of an ahupuaa but wholly independent of it; and the kuleana, a small tract of cultivated land awarded to a native tenant in the course of land reform. Konohiki or landlord units were the ahupuaas and ills kupono.265 In the two Hawaiian cases in which riparian rights were actually decreed to specific lands, the riparian tracts in one case comprised an ahupuaa owned by the Territory on which the stream rose, and a privately owned ahupuaa into which it flowed; and in the other case, the riparian tracts comprised ilis kupono in private possession on which the stream rose, and the seaward portion of the ahupuaa of which the ilis formed a geographical (but not a legal) part across which the stream flowed to the sea.266 It has been stated earlier that the generally recognized rule in the States which recognize the riparian right is that title to the right accrues when title to the riparian land passes from public to private ownership (see "Accrual of the Right," above). The source of the title to the riparian right, therefore, lies in the origin of title to the riparian land in which it inheres. In many cases this is the date of entry or settlement upon vacant public land. Although the right actually accrues when the land is patented, as against parties other than the government the entryman is generally protected in his pending enterprise by the doctrine of relation back to date of entry or settlement with the bona fide intention of obtaining a patent. Original grant from the government.-It was early established in California that the riparian right cannot extend to more land than embraced within the original single grant from the Federal Government or from the State that established the initial riparian title-that the acquisition was limited to one transaction.267 The Texas Supreme Court adopted the California rule that, in the first place, riparian rights cannot extend beyond the original survey as granted by the government; and second, the boundary of riparian land is restricted to land the title to which was acquired by one transaction.268 265Hutchins, W. A., "The Hawaiian System of Water Rights" 2146 (1946). 266Carter v. Territory of Hawaii, 24 Haw. 47 (1917); Territory ofHawaiiv. Gay, 31 Haw. 376 (1930), affirmed, 52 Fed. (2d) 356 (9th Or. 1931), certiorari denied, 284 U.S. 677 (1931). 267Lux v. Haggin, 69 Cal. 255, 424-425,4 Pac. 919 (1884), 10 Pac. 674 (1886);Boehmer v. Big Rock In. Dist., 117 Cal. 19, 26-27, 48 Pac. 908 (1897), discussed at note 258 supra; Title Ins. & Trust Co. v. Miller & Lux, 183 Cal. 71, 82,190 Pac. 433 (1920). "•Watktns Land Co. v. Clements, 98 Tex. 578, 585, 86 S.W. 733 (1905); Sun Co. v. Gibson, 295 Fed. 118,119-120 (5th Cir. 1923). |