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Show ANCIENT CUSTOMS IN THE NEWEST STATE 173 By contrast with the mainland Western States, the fundamental surface water rights system of Hawaii is most unique. Aside from a very limited engrafting of the riparian doctrine upon the ancient system in modern times, it is not based upon the common law; nor is it based on the civil law or the doctrine of prior appropriation. It is the crystallization into legal form of customs of ancient origin that were developed among the natives. The early water rights in Hawaii related to waters on the surface of the earth, chiefly streams and springs. Ground water development, which began late in the 19th century, has become of major importance in the economy of the Islands. Rights to the use of ground waters are discussed in chapter 20. The System of Land Titles Originally all lands and waters were owned and controlled by the King, who made grants from time to time to the principal chiefs or "konohikis" under whom further divisions and subdivisions were made.6 All allotments and suballotments were revocable at the will of the grantor, and reverted to the King on the death of the holder. Possession of allotted land, temporary and insecure though it was, carried with it water rights, fishing rights, and the right to use forest products. Complications over the land question which developed as alien residents became numerous led eventually to the "Great Mahele," or voluntary division of lands between the King and the chiefs or konohikis.7 This transaction, which took place in 1848, left the King in possession of the larger part of the lands in the kingdom; but he immediately made a second division of this retained area and conveyed the larger part of it to "the chiefs and people."8 The lands finally reserved by the King were known as "crown lands" and those ceded as "government lands." On the formation of the Republic of Hawaii, all crown lands not disposed of became the property of the government. A commission to quiet land titles-commonly known as the land com- mission-which functioned from 1846 to 1855,9 made awards adjudicating the kind and amount of land title of claimants other than the King and government. The awards were subject to (1) obtaining patent from the government upon payment of commutation, except as noted below, and (2) appeal to the supreme court. Rights of native tenants or "hoaainas," as against the landlords or konohikis, however, were secured by land commission awards of fee simple water rights in Hawaii is treated in detail in Hutchins, W. A., "The Hawaiian System of Water Rights" (1946). '"Principles Adopted by Land Commission," Haw. Laws 1847, p. 81. 'See Kuykendall, supra note 1; Thurston, L. A., "The Fundamental Law of Hawaii" (1904). 8Inre Estate of His Majesty Kamehameha IV, 2 Haw. 715, 722-723 (1864). 'Haw. Laws 1846, p. 107; Laws 1854, p. 21. |
