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Show 176 THE ANCIENT HAWAIIAN WATER RIGHTS thereof. The only ways in which title to a water right may be acquired are by grant from the public or private owner, prescription, or condemnation. Nor is there statewide administrative control over the distribution of the water of such watercourses to those entitled to receive it. There is in Hawaii, however, a special statutory judicial procedure for the settlement of water controversies. Ancient Water Rights Ahupuaas and His Kupono A royal grant of an ahupuaa to a konohiki carried with it all natural resources thereon except what the King reserved for his own use. A common royal reservation was an ili-in such case termed Hi kupono-with natural resources including water found upon it, over which the konohiki of the ahupuaa had no control. The use of water of an ili kupono belonged to the King and to his successor as konohiki of the ili, not to the konohiki of the ahupuaa of which it formed only a geographical part.18 Under "Ancient Appurtenant Rights," below, there is noted the significant changeover from taro (kalo) to sugarcane irrigation of so many of the ancient appurtenant kuleana water rights since the period of land reform. This substitution of irrigated crop and original place of use did not affect the validity of the old established rights or their preferential standing in the ahupuaa or ili in which they were located. The aggregate of all proven uses of water in the 1850's, even if all such uses were converted from taro to sugar irrigation, would have been adequate for only a very small fraction of the acreage in cane that came to be irrigated from surface streams. More water than that covered by ancient appurtenant rights was required; hence there were developed principles relating to the use of surplus waters of an ahupuaa or an ili kupono-meaning the quantity of water flowing in a stream of the ahupuaa of the ili in excess of that required to satisfy the ancient appurtenant and prescriptive rights attaching to the waters of such stream. These "surplus" waters are of great importance in the agriculture of the Islands. The konohiki of either an ahupuaa or an ili kupono-or his successor-had as his ancient heritage the unqualified right of use of all surplus waters of streams that lay entirely within such land unit.19 This was subject to the paramount established rights which may have been ancient appurtenant rights of kuleanas, prescriptive rights, or rights conveyed by deed. Subject thereto, the konohiki or present owner of the ahupuaa or ili may use such surplus waters as he pleases-and either within or outside the ahupuaa or ili, because the surplus waters are not appurtenant to any particular portion of it.20 "Territory of Hawaii v. Gay, 31 Haw. 376, 380-382 (1930), affirmed, 52 Fed. (2d) 356 (9th Cir. 1931), certiorari denied, 284 U.S. 677 (1931). "Hirtchins, supra note 5, at 69-74. 20See Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 680-683 |