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Show WATER RIGHTS IN SURFACE WATERCOURSES 177 The same principle of an unqualified right of use applies to the surplus normal flow of a stream that arises within an ahupuaa or an ili kupono and flows thence into a lower ahupuaa. The konohiki of the unit on which the waters arise has the exclusive right of use. Rights to the use of the surplus floodwaters in such case, however, are qualified by the rights of the konohiki of the lower ahupuaa. The respective rights of the konohikis in the surplus floodflows are to be determined by the principles of the riparian doctrine.21 (See the later discussion under "Riparian Rights: Limited Application.") So long as the holders of established rights are properly safeguarded, surplus waters of an ahupuaa may be separated therefrom by its owners and conveyed to others for use outside its boundaries.22 The owner of an ahupuaa who conveys portions of it to others is still konohiki. No one of several grantees of lands of substantial area, but which are still minor fractions of an ahupuaa, can be lord paramount over the river that flows through it.23 Whether or not the deed to a portion of an ahupuaa expressly mentions appurtenances, the grant by the konohiki includes as an appurtenance the artificial watercourses thereon and all the water that has been enjoyed therefrom from time immemorial.24 However, a grant or lease of land without express mention of water rights includes water privileges only if the easement already exists. A conveyance of "kula" or "dry" (that is, unirrigated) land within an ahupuaa to which ditches are not constructed carries no implied grant of water privileges.25 As an integral part of the sweeping land reform in the mid-19th century, in which the relative rights of the King, konohikis, and hoaainas were defined and established, an act of the legislature granting fee simple titles to native tenants for their cultivated lands and house lots, and protecting them in the enjoyment of certain rights, contained a section which with slight modifications is still on the statute books.26 This section declares that the people on lands to which landlords have taken fee simple titles have the right to take firewood and certain other products from the tracts where they live for their own private use, together with a right to drinking water, running water, and the right of (1904); In re Taxes, Waiahole Water Co., 21 Haw. 679, 682 (1913); Carter v. Territory of Hawaii, 24 Haw. 47, 70 (1917); Foster \. Waiahole Water Co., IS Haw. 726, 734-735 (1921); Territory of Hawaii v. Gay, 31 Haw. 376, 384, 388 (1930). 21 Carter v. Territory of Hawaii, 24 Haw. 47 (1917); Territory of Hawaii v. Gay, 31 Haw. 376 (1930). "Foster v. Waiahole Water Co., 25 Haw. 726,734-735 (1921). "Peck v. Bailey, 8 Haw. 658, 662-663 (1867). "Carter v. Territory of Hawaii, 24 Haw. 47, 57-58 (1917). "Peck v. Bailey, 8 Haw. 658, 661 (1867). The grantee in such case, having no claim upon the surplus waters of the ahupuaa, cannot restrain diversion thereof by the konohiki to his own kula lands. Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675,682-683,690(1904). "Haw. Laws 1850, § 7, pp. 202, 203, Rev. Stat. § 7-1 (1968). |